Richards & Ors v Rahilly & Anor

Chappell v Hart (1998) 72 ALJR 1344 Eagle v Prosser [1999] NSWCA 166 KL v Farnsworth [2002] NSWSC 382 Maloney v Commissioner of Railways (NSW) (1978) 52 ALJR 292 CASES CITED : Perre v Apand Pty Limited (1998) 198 CLR 180 Rogers v Whitaker (1992) 175 CLR 479 at 489 Rosenberg v Percival (2001) 205 CLR 434 Rufo v Hosking [2004] NSWCA 391 Wakim v McNally (2002) 121 FCR 162

Rhiannon Lorraine Richards by her tutor Judith Anne Ennis - First Plaintiff Judith Anne Ennis - Second Plaintiff Mark Richards - Third Plaintiff PARTIES : Dr Patrick Rahilly - First Defendant Royal Alexandra Hospital for Children - Second Defendant

Jay Anderson/D Hirsch - Plaintiffs COUNSEL : Paul Brereton SC - Defendants

Maurice Blackburn Cashman - Plaintiffs SOLICITORS : Blake Dawson Waldron - Defendants

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20324/2001 - Rhiannon Lorraine RICHARDS by her tutor Judith Anne ENNIS and Ors v Dr Patrick RAHILLY & Anor

JUDGMENT 1 HIS HONOUR: The first plaintiff (Rhiannon Richards) was born on 17 October 1998 to Judith Ennis her tutor in these proceedings (second plaintiff) and Mark Richards (third plaintiff). For ease of reference, I have in this judgment referred to the parties by name. Rhiannon is now six years of age. The events the subject of these proceedings occurred during the first two years of her life. She was diagnosed with a form of epilepsy in November 1999. The precise nature of the epilepsy remains a matter in dispute, as does the appropriate course of treatment and whether earlier intervention by the defendants would have made any difference to her condition. These proceedings are essentially concerned with those controversies. 2 The matter was heard by Shaw J over twenty two hearing days between 1 December 2003 and 8 October 2004. Comprehensive written submissions were prepared by each side. Shaw J retired in November 2004 before delivering judgment. It was agreed between the parties that the matter should proceed before me on the basis of the transcript of evidence, the exhibits and the written submissions. The written submissions were extensive and comprehensive. Counsel for both parties made further oral submissions to me between 21 March - 22 March 2005. On that occasion video material was viewed and explained. I did not see or hear any of the witnesses. This judgment is based on my examination of the materials to which I have referred and the oral submissions made to me.

Nature of claim 3 Liability and damages were severed. The matter proceeded before Shaw J and myself solely in relation to liability. The trial was limited by agreement between the parties to the question of the liability of Dr Rahilly and the hospital to Rhiannon. 4 The claims by Ms Ennis and Mr Richards for nervous shock were not dealt with except insofar as their success depended upon a finding in favour of Rhiannon against one or both of the defendants. 5 The case against Dr Rahilly as finally refined was that there was an excessive delay in the diagnosis process, in particular a failure to arrange an urgent EEG soon after he had a telephone conversation with Dr Grattan-Smith on 30 September 1999. In that regard it was asserted that there was a "communication break down" between Dr Rahilly (a general paediatrician) and Dr Grattan-Smith (a paediatric neurologist). 6 It was submitted that there were failures preliminary to that breach in that he failed to take a proper history from Ms Ennis and Mr Richards, that he failed to act on the clinical history which he obtained, in particular that Rhiannon had a normal birth and had developed normally until shortly before he first saw her, and that he failed to respond adequately to the complaints of Rhiannon's parents in relation to her deteriorating condition. 7 The delay was at most four and a half weeks. Rhiannon's case was that had an urgent EEG been arranged soon after 30 September 1999 she would have received treatment earlier so that her brain dysfunction would have been reduced and her ultimate developmental outcome would have been better. Accordingly the delay by Dr Rahilly either caused damage directly to Rhiannon or alternatively, she lost the chance of a better outcome. 8 As against the hospital the case was twofold. Firstly the hospital (Dr Grattan-Smith) should have used the medication Vigabratrin as either a first line treatment of Rhiannon or within a short time after initial treatment when other drugs had not been successful. Secondly there had been a failure to advise Ms Ennis and/or Mr Richards adequately or at all concerning the benefits and risks of Vigabratrin so as to enable an informed decision to be made by them as to whether and if so when, that treatment should have been provided for Rhiannon. Had they been so advised they would have directed the hospital to treat Rhiannon with Vigabatrin. 9 It was Rhiannon's case that each of those failures or a combination thereof resulted in her seizures or infantile spasms (the diagnosis is disputed) continuing for longer than they should have. It was submitted that because Rhiannon had responded rapidly and positively to Vigabatrin when it was finally given to her, had it been provided in a more timely manner the seizures would have ceased earlier and there would have been less long-term developmental retardation and brain dysfunction. 10 The response by the defendants can be summarised:

(i) Rhiannon had significant developmental delay before the onset of seizures and which was present by at least the age of six months.

(ii) The failure by Dr Rahilly to arrange an urgent EEG was not a departure from appropriate professional standards and was in the circumstances reasonable, particularly when he did so on the advice of a specialist paediatric neurologist.

(iii) The hospital did not depart from appropriate standards by implementing a regime of medication which did not include Vigabatrin in that Rhiannon did not have "infantile spasms" and the treatment regime actually implemented was one which was recognised and accepted in the treatment of such conditions.

(iv) Vigabatrin was effective in only some cases of infantile spasms and by 1997 its use was associated with the development of visual field defects. It tended to be used only when other more recognised treatments had failed to be effective.

(v) There was no obligation on the hospital as a matter of law to explain the advantages and disadvantages of Vigabatrin to Rhiannon's parents unless and until it was intended to treat Rhiannon with Vigabatrin.

(vi) If a breach of duty was found, it did not cause Rhiannon damage. The advice of Dr Grattan-Smith as to what treatment to use would have been accepted. It was not clear that Vigabatrin had had an immediate and positive effect on Rhiannon. Her improvement may have been coincidental with its administration. In any event, such improvement was gradual and over time.

(vii) There was insufficient evidence to establish that brain damage is caused by uncontrolled seizures. In the circumstances of this case causation could not be inferred from proof of a breach of duty.

Factual background 11 Although there were a number of factual disputes, it is important to understand the background against which the plaintiffs' claim is made. I have indicated those matters which are disputed. Except as otherwise indicated, I find the factual background to be as set out in the following paragraphs. 12 Rhiannon was born on 17 October 1998. Her birth was normal. Her mother, Judith Ennis, was born on 23 February 1974 and her father, Mark Richards, was born on 24 October 1963. Rhiannon's parents had a somewhat volatile relationship. It had commenced in 1993 and was punctuated by separations and reconciliations. Judith Ennis was the mother of four children, the first child having been born on 20 September 1991. She had a second child on 8 May 1993. After her relationship with Mr Richards commenced she had a third child of which he was the father and who was born on 1 December 1994. Rhiannon was thus the fourth and youngest of the children of Ms Ennis. None of the other children had exhibited developmental problems as they were growing up. 13 During the periods of reconciliation Mr Richards would stay with Ms Ennis for months at a time, but would then move out. Mr Richards was working as a painter during 1999-2000, which involved periods of employment and unemployment. As of August-September 1999 Mr Richards and Ms Ennis were together but experiencing difficulties. They separated in October/November 1999. During the periods of separation Mr Richards maintained a close interest in his two children. Ms Ennis was the principal care provider for Rhiannon. 14 Rhiannon presently suffers from serious brain dysfunction. She is not able to speak. She is significantly developmentally delayed. Her epilepsy is reasonably controlled. She is able to sit and walk. She can follow simple verbal directions accompanied by gestures and signs. She is fully dependent on the help of a carer. 15 Rhiannon appears to have developed relatively normally until the age of six months (17 April 1999). There is a dispute in relation to this. It is Rhiannon's case that she continued to develop normally until August/September 1999 when she began to show signs of irritability and some developmental problems. It is the defendants' submission that developmental delay had occurred earlier than that and was present by the age of six months. 16 On 25 August 1999 the plaintiff was taken by her parents to see Dr Helen Borg, a general practitioner (GP), in Dubbo for a right ear infection. An anti-biotic was prescribed. The reason Dr Borg was consulted was because an appointment could not be obtained with the plaintiff's usual GP. Doctor Borg had not seen the plaintiff before. The state of the plaintiff's health and developmental level at the time of this consultation is a matter in dispute. 17 On 6 September 1999 Rhiannon was taken by Ms Ennis to see Dr Frater (Dr Frater was a general practitioner who worked from the same practice as Dr Gibson, Rhiannon's usual GP). The reason for this attendance was that Rhiannon had an upper respiratory tract infection. An antibiotic was prescribed. 18 There is a dispute as to what was said at that consultation. Doctor Frater's notes record under the heading "Signs" - "Not hearing and no crawling yet …" and under the heading "Follow up" - "Needs Paeds Assessment". It was agreed that "paeds" meant paediatric. Ms Ennis could not remember anything being said about hearing and was definite that nothing was said to her about seeing a paediatrician. 19 On 19 September 1999 Rhiannon was observed to be "rolling her eyes back and throwing her head back". (T.84.45) This phenomenon was observed by Ms Ennis, Mr Richards and a Barbara Lancaster. 20 On 20 September 1999 Rhiannon's parents took her to Dr Gibson and reported what they had seen. Their evidence was that Rhiannon had been crying and irritable throughout August and September. Doctor Gibson recorded under "Symptoms" - "Attacks of rolling eye back, not sitting, not crawling or creeping." It was common ground that until that time Rhiannon was not sitting, crawling or creeping. It was common ground that Dr Gibson's note "suffering attacks of rolling eyes back for last few months …" must be mistaken since that symptom had only arisen within a day or so of the consultation. 21 Doctor Gibson recommended that a paediatrician be consulted. Three names were suggested by Dr Gibson and Rhiannon's parents chose Dr Rahilly. Mr Richards tried to get an appointment, but was told that Dr Rahilly was booked out and could not see them. Mr Richards was eventually successful and it was arranged that Dr Rahilly would see Rhiannon during lunchtime on 21 September 1999. This was outside his normal consulting hours. 22 It was the evidence of Ms Ennis and Mr Richards that on the morning of 21 September 1999 before the attendance on Dr Rahilly, a friend, Diane Dowton observed Rhiannon rolling her eyes and throwing her head back. This occurred at Ms Dowton's place of work being a take-away chicken shop known as the "Golden Hen". According to Ms Ennis and Mr Richards, Ms Dowton who had some experience with epilepsy said "She is having a seizure" and advised them to communicate this to the paediatrician when they saw him. 23 Ms Ennis initially said that this incident in the "Golden Hen" had occurred after the first consultation with Dr Rahilly, but in cross-examination said that it had occurred before. It was the evidence of Mr Richards that the incident occurred before the consultation with Dr Rahilly. Ms Dowton in her statement recalled that the incident had occurred before a visit to Dr Rahilly. I am satisfied that such an incident did occur before the first consultation with Dr Rahilly. 24 The consultation with Dr Rahilly took place at lunchtime on 21 September 1999 as had been arranged. There is a significant dispute as to what was said at that consultation. It was clear from the cross-examination that Ms Ennis had little recollection. She said that the consultation was rushed. She remembered that Mr Richards had told Dr Rahilly that Rhiannon was rolling her eyes and throwing her head back and was irritable. She remembered Dr Rahilly saying that Rhiannon should attend an early intervention centre and that she was mildly retarded. 25 Mr Richards had a better recollection of what had occurred at that consultation. He said that he told Dr Rahilly that Rhiannon had been irritable for a couple of months and was rolling her eyes and throwing her head back. This was demonstrated by him to the doctor. The doctor had asked whether Rhiannon was smiling, giggling, grabbing things and he had replied 'no'. This conflicted with what Ms Ennis had said that Rhiannon had smiled at six weeks. Mr Richards sought to explain the disagreement in that when he provided that information to Dr Rahilly, he was referring to the situation at the time of the consultation, not to what had occurred in the past. 26 Mr Richards said that he had informed Dr Rahilly that one of his friends thought that Rhiannon had had a seizure and he asked Dr Rahilly whether she could be admitted to hospital. He said that Dr Rahilly appeared to ignore that information and request. Doctor Rahilly advised him that he was going to carry out some tests and that Rhiannon was mildly retarded. He characterised Dr Rahilly as "abrupt, obnoxious and rude". 27 Dr Rahilly's evidence comprised his statement and oral evidence. He made notes of the consultation which are set out in para (16) of his statement. On 4 October 1999 he wrote a letter to Dr Gibson referring to what had occurred and what information he had elicited during the consultation. His evidence was more detailed than that of Ms Ennis and Mr Richards. 28 Dr Rahilly's letter to Dr Gibson of 4 October 1999 stated: "Thank you for asking me to see Rhiannon who was brought up by her parents 21.9.99. I note that they were concerned because she had a tendency to roll her eyes back. You were concerned by her poor development. Product of a normal pregnancy, three weeks premature delivery (I will check birth weight next time!), the parents were a bit vague about her milestones. The mother feels she smiled at six weeks; the father feels she has yet to smile properly. They feel she can see and hear and tell me that eyes and ears were checked out as normal at Baby Health Clinic. She rolled over from front to back at about 7-8 months of age and it doesn't sound as if she has gained many skills since then. She was seen in the Baby Health Clinic for the first months of life and then discharged. She does not sit, reach, grab or babble. She does follow sound and sight, the parents believe. Rhiannon has this tendency to roll her eyes back. This up till recently has only been when she hears a loud noise or is otherwise distressed but recently has happened a bit more spontaneously. This is a fleeting episode with no alteration in consciousness or other associated features. Mother is a twenty five year old housewife, father a thirty six year old part time painter and decorator. They have a boy of five. The father has a child of six years from a previous relationship who does not live with them. The mother has children of six and eight from a previous relationship who live with her most of the time. There is no family history of delay; the other children were, in the parents' eyes, quite advanced. On examination (which I will repeat next week as this was a somewhat rushed preliminary consultation) I felt cardio-vascular, respiratory and abdominal systems were normal as were tone, power and jerks. Rhiannon could weight-bear on the legs well. However, her milestones are as outlined above so that she has some global retardation with gross motor, fine motor and social development at about a 3-4 month level. As a first step I have arranged ultrasound of the head, urea, electrolytes, creatine, calcium phosphate, magnesium thyroid function tests, urine for metabolic screen and chromosomes. I will add all the results from this as a second part to this letter. I will be reviewing Rhiannon in a week. …" 29 His statement as to the consultation was: "(8) Rhiannon's mother told me that she felt that Rhiannon had smiled at six weeks, but her father wondered whether she had ever smiled properly. They reported she had rolled from front to back at about seven to eight months but had not gained any real skills since that time and she was not speaking. I found it difficult to elicit from Rhiannon's parents a clear developmental history as they argued in front of me about her abilities and whilst the failure to progress was timed as being from seven-eight months, the history given (for example of smiling) suggested delayed development from an earlier age. (9) Rhiannon's parents informed me she had been checked by the Baby Health Clinic for the first few months of her life and discharged without any note of problems. I do not recall being shown Rhiannon's "blue book" from the Baby Health Clinic. I recall asking Rhiannon's parents to bring it to the next visit but as far as I can recall, this never happened. … (13) On examination Rhiannon's cardiovascular, respiratory and abdominal systems were normal. Tone power and jerks appeared normal, pupil reaction was normal but the fundi were not seen. (14) I considered Rhiannon was significantly globally retarded and estimated her development was at about the 3-4 months level. I discussed with her parents at this or the next consultation the issue of Rhiannon going on to an early intervention program and I strongly supported it. (15) I recommended Rhiannon undergo an ultrasound of the head to exclude the possibility of an acute problem due to haemorrhage. I also ordered tests for urea, electrolytes, creatinine, calcium, phosphate, magnesium, thyroid function, a urine metabolic screen and chromosomes. I arranged for a further review of Rhiannon in approximately one week."

Part of the statement relating to this consultation was objected to and rejected (para (10) and part of para (11)). 30 In his oral evidence (T.709ff) Dr Rahilly said: "A. Well they came in and sat down. The mother was holding Rhiannon and so as I sat facing them she was on the left of the father. I asked them what the problems were and her mother said that the main things worrying her were that she was not able to do the sorts of things most babies were able to do at that age, that she had recently become irritable and more recently had begun to startle rather easily and tense up, particularly with loud noises and more recently again there had been some eye rolling noticed when she startled with the noises. Q. What if anything was said on when the eye rolling occurred? A. As I say they said it was happening mainly when she was frightened by what they quoted was "loud noises". I asked if anything else could do it. They said sudden movements near her had been noted to make her tense up and roll her eyes. … Q. Again as if you are replaying this, what did he say, what did they say or each of them say on the topic of head nodding? A. On that occasion the father imitated what was happening and said she tenses up and holds her head back. They did not say anything about head nodding. … I asked "Does she nod her head forward" the father said "No". … I asked if there had been any other movements. I asked both parents and one of them, and I can't remember which, answered the movements were tensing with the head going back and that there weren't other movements. … Q. What, if anything, did you ask and what, if anything, did either of them say on the topic of consciousness or absence of consciousness? A. I asked them both if she seemed to be losing consciousness during these episodes and one or both answered that there wasn't. Perhaps I should add, sorry, wasn't as far as they could tell. Q. What, if anything, did you do to elicit a history of Rhiannon's development on that occasion? A. I started by asking when she first smiled. Q. What happened then? A. Her mother said she felt she probably smiled at about six weeks. Her father denied that. Q. What did he say? A. Denied that saying, sorry, her father said. Q. Look forget about words like 'denied', all those conclusions, just "he said"? A. The father said "she has never smiled". Q. And was that said quietly? A. No that was said quite loudly. Q. What happened then? A. Rhiannon tensed up. Q. Where was Rhiannon? A. Rhiannon was on her mother's lap. Q. What did you observe? A. I observed the body tensing, the head going slightly back and a very fleeting short lived rolling of the eyes up. Q. What, if anything, did you say about that then? A. I said "Is that the sort of problem you are talking about?" and the father replied "Yes, that's typical". Q. What happened next? A. I then continued to try and talk to them about the sorry, I then continued to talk about the developmental history. Q. What did you say, what did they say? A. I said "Has she rolled yet?". One of the parents said "She rolled at about seven to eight months". The other parent said that they could not remember when she had rolled. When I asked if there had been any other skills she had gained, neither parent could remember any more skills. HIS HONOUR: Q. What would be the normal age for rolling over? A. Rolling your Honour would be at about three to four months. I asked whether she had sat. They said "No", both said "No". COUNSEL: Q. Was there any reference and if so what, to creeping or crawling? A. Yes, I asked them whether she had crawled and they said no. I asked if she had ever pulled up to stand and they said no, that is your Honour pull up on the furniture. HIS HONOUR: Q. I see. What is the expression? A. Usual your Honour at about 8 to 9 months a baby will start to grab on to furniture and pull up and enjoy standing, stand and hold themselves, standing supported by the furniture. COUNSEL: Q. So far as the episodes of eye rolling were concerned what, if any, inquiry did you make as to when and how often that had first been noticed? A. Yes I asked both parents when they first noticed both the tensing up and eye rolling. It was difficult for them to be precise about the timing … Q. Just tell us what they said. A. They said they were not sure of the exact timing. … Q. Do you recall which parent said they were unable to say? A. The problem is I was talking to both of them and each one replied and I cannot remember at each point which parent talked first, which second, or whether they both replied. Q. Now did either of them say anything on the topic of how often this had happened to their observation? A. The tensing up and reaction to the child being frightened had started before the eye rolling. This is the picture I am trying to … Q. What do you recall either of the parents saying, if anything, on the topic of how often the eye rolling had occurred? A. They said it occurred a few times over the last few days." 31 Under cross-examination Dr Rahilly agreed that he had made a mistake in his notes as to how many children Mr Richards had but did not agree that the consultation was rushed. He agreed that it was difficult to obtain a clear developmental history, but that what he did obtain was accurately recorded. (T.727 ff). He agreed that he may have used the word "retarded" when discussing the matter with Rhiannon's parents, but would only have done so if they did not understand the concept "developmentally delayed". (T.732) Doctor Rahilly denied being told about Ms Dowton's opinion that Rhiannon had experienced a fit (T.762). He could not remember any request that Rhiannon be admitted to hospital. 32 I have concluded that the version of the consultation given by Dr Rahilly is more accurate than that given by Rhiannon's parents. It is clear from her cross-examination that Ms Ennis had little recollection of it. Mr Richards' recollection seems to have been coloured by his dislike of Dr Rahilly, his belief that Dr Rahilly's conduct was responsible, at least in part, for his daughter's condition and a desire to do the best he could to advance his daughter's case. By way of illustration, his explanation of why he told Dr Rahilly that Rhiannon was not smiling, giggling or grabbing things (T.216-217, 286-287) is improbable. If, as Mr Richards agreed, there had been an argument between him and Ms Ennis in front of Dr Rahilly on these matters, it would have become immediately obvious to him if Ms Ennis had been talking about the past but he was talking about the present. 33 Although Dr Rahilly also had an obvious motive for not telling the truth, his evidence as to the first consultation is fully consistent with his letter to Dr Gibson on 4 October 1999 and with subsequent correspondence. It is consistent with his notes. The only established inaccuracy was in relation to a peripheral matter, ie whether Mr Richards was the father of a child by another woman. The history and details recorded by him so far as they can be independently checked were otherwise accurate. These documents came into existence at a time when litigation was not contemplated. 34 I also have reservations about Mr Richards' description of Dr Rahilly's demeanour at the first consultation. It is clear that Mr Richards was upset at the time of the consultation in that he had an argument with Dr Rahilly's receptionist even before the consultation took place. I also suspect that his adverse description of Dr Rahilly's demeanour has been coloured by subsequent events. I do accept that the consultation may have been somewhat rushed in that it was fitted into Dr Rahilly's lunch break at short notice. Despite this, I am satisfied that Dr Rahilly asked the questions which were appropriate for such a consultation and that he accurately recorded the responses which he obtained. That was the opinion of Dr Ingall, a paediatrician qualified by the defendants (report 21.1.02.) 35 In the days following the consultation on 21 September 1999, the test results relating to Rhiannon were received by Dr Rahilly. They were all negative - the Urine Metabolic Profile test, the Routine Biochemistry test, the General Chemistry test, the Haematology test, the Thyroid Function test, the Cytogenetics test and the Ultrasound of the brain. 36 On 27 September 1999 Rhiannon's parents again took her to see Dr Rahilly. This was a normally scheduled appointment and it was not suggested that it was rushed. Those test results which were to hand were communicated to Rhiannon's parents. There is some dispute as to what occurred at that consultation. According to Mr Richards, Rhiannon's rolling of the eyes and tensing was happening more frequently and without any provocation. The evidence of Dr Rahilly was (T.713): "I asked the parents how things were going. One of the parents, to the best of my memory, her mother, said that she seemed, if anything, a bit more irritable, and that the episodes were happening a bit more often. I asked had they changed in any way, and one of the parents said not really." 37 As with the first consultation, I prefer the evidence of Dr Rahilly. Had Dr Rahilly been told that the episodes were occurring spontaneously he would have noted this fact because it would be a significant change. His notes do not record such a change. 38 He was cross-examined (T.793) as to his use of the word "more spontaneously" in the letter to Dr Gibson of 4 October 1999. Doctor Rahilly's answer is instructive. "A. Well as I have said in the statement, that's a bad use of, in fact a meaningless use of English which unfortunately I slipped in during a dictation session. Something is either spontaneous or not. What I meant was that as she became more irritable, they were more easily elicited. I agree I should have written that. If they were spontaneous, I would have just said spontaneous. It was a bad use of English when I said more spontaneous. Meaning more easily elicited. If they had been spontaneous that's what I would have written and told Dr Grattan-Smith."

See also paras [164] - [166]. 39 It was at about this time that Rhiannon was placed in a walker and video film was taken by Mr Richards of her attempting to walk using that piece of equipment. That video was available and relied on at trial. It was one of the video sequences explained to me during submissions. 40 On 30 September 1999 Dr Rahilly telephoned Dr Grattan-Smith, a paediatric neurologist, at the New Children's Hospital in Sydney. The evidence of Dr Rahilly as to this conversation (T.713) was: "I said to Grattan-Smith "I've seen this girl of" - these are to the best of my recollection my words - "I have seen this child of about eleven months with significant developmental delay, who has recently become irritable and more recently developed a tendency when startled to stiffen up and hold her head back and more recently roll her eyes back. Could I ask you to see her down at the hospital, and would it be best if we arrange an admission for a CT scan and for you to see the child at the same admission and I suppose we should also do an EEG." Doctor Grattan-Smith said "No, an EEG particularly at this age is not useful for deciding if episodes are fits, that has to be made on a clinical basis". I said "Well clinically I don't think these are fits". He said "Well I'm happy to see her. I feel it would be better to wait until we can get an MRI scan in this situation. I'll look into the waiting list and when I get your letter I'll make the final arrangements for admission for further assessment and the MRI scan. I'll get back to you." - I think he said sorry, "We will get back to you when we know the date." And I said "Thank you"." 41 Doctor Rahilly sent to Dr Grattan-Smith a copy of the letter of 4 October 1999 which he had sent to Dr Gibson. He sent that letter to Dr Grattan-Smith on 4 October 1999, or shortly thereafter. That letter was received by Dr Grattan-Smith (T.826): "The next thing was the letter I asked him to send to me arrived and there was nothing in that letter that made me change my views, the views that I had garnered from the conversation." 42 The evidence of Dr Grattan-Smith in relation to that conversation was somewhat different to that of Dr Rahilly (T.825). "Q. Now in connection with your witness statement you tell us the first involvement in your care of Rhiannon was when you received a telephone call from Dr Rahilly and you tell us you are not sure of the exact date but believe it would have been around 4 October 1999. When you received that telephone call where were you? A. I was out of my office and may well have been seeing a patient, basically because I asked Dr Rahilly to send me a letter with all the relevant details in it. Q. As best you can recall when you received that call what did Dr Rahilly say and what did you say? A. He said that he had an 11 months old child who had fairly marked developmental delay. I can't remember if he went through all the milestones he put in his letter but the description was of a child with marked developmental delay and the main question was should she have a CT scan. I said that I did not think a CT scan was the best test under the circumstances and that though both CT and MRI at that age will require anaesthetic the MRI will provide a lot more information so would prefer to go straight to the MRI rather than first do the CT then having to give the child another anaesthetic to give an MRI scan after it. In part of the discussion he said "She's got some unusual movements". Again my inclination was he was talking more about … I can't remember whether he referred to limb or eye movements but I said to Dr Rahilly "Do you think these movements are seizures?" He said "No". I said "I don't think it would be worth sending the child down from Dubbo to Sydney to have an EEG where the child has been delayed from birth and you don't think the child is having seizures." That was basically the end of the conversation."

Under cross-examination Dr Grattan-Smith denied that he had ever told Dr Rahilly that EEG's were not useful in children of Rhiannon's age. (T.843) 43 In a letter to Dr Grattan-Smith of 27 December 1999 Dr Rahilly described the conversation in these terms: "I'm writing to you about this child to clear up some confusion in my own mind over what I feel is a fairly important matter. You may or may not remember that I rang you shortly after I had seen this child for the first time at the age of 11 months. I will briefly tell you the story of the child who presented with severe global retardation and a tendency when startled to roll her eyes back but no history despite pressing of this happening other than when startled and no head nodding. You may remember that I discussed the possibility of the child having an EEG as well as MRI and seeing yourself and that you told me that it would not be clinically useful at this age. …"

In a letter of the same date to Mr Richards, Dr Rahilly said: "I discussed the child's case with Dr Paddy Grattan-Smith and raised the possibility of him seeing the child for further assessment and at the same time arrange CT scan of head and EEG. Dr Paddy Grattan-Smith's opinion was EEG would not be helpful at this stage and he would prefer an MRI to be performed and undertook to arrange that. …"

Dr Grattan-Smith replied by letter dated 17 January 2000: "As I remember our discussion you did not think Rhiannon was having seizures and the problem at that time seemed to be global developmental delay with some unusual movement. We, therefore, decided that the most sensible approach would be to arrange for her to come down and have full workup including MRI scan and EEG and other metabolic studies depending on the clinical situation. …" 44 There is a clear discrepancy between Dr Rahilly and Dr Grattan-Smith as to exactly what was said concerning why an EEG was not thought to be useful as of 30 September 1999. There is, however, a significant congruence between the two versions. Both involve a similar background discussion concerning developmental delay. The possible use of an EEG was specifically raised and was rejected by Dr Grattan-Smith because of the clinical assessment by Dr Rahilly that Rhiannon's unusual movements were not seizures. Whatever the precise words used, it is clear that Dr Grattan-Smith did not recommend an EEG in that conversation because Dr Rahilly did not think Rhiannon was having seizures. Given the circumstances of the conversation, Dr Rahilly's recollection of its precise terms is probably better than that of Dr Grattan-Smith (T.785.19). 45 It was common ground that there were no EEG facilities available for children in the Dubbo/Orange area and that for an EEG to be carried out, Rhiannon would have to go to Sydney. 46 It was Mr Richards' recollection that at the consultation with Dr Rahilly on 27 September 1999, Dr Rahilly mentioned that he was going to book Rhiannon for an MRI examination at Westmead Hospital (T.220). That recollection appears to be incorrect in that this decision was not made until 30 September in the course of the conversation between Dr Rahilly and Dr Grattan-Smith. The proposal for Rhiannon to undergo an MRI scan in Sydney was communicated by Dr Rahilly to Rhiannon's parents after 30 September 1999, probably by telephone. Subsequently when both Ms Ennis and Mr Richards rang the Children's Hospital at Westmead, they were advised by the hospital that it had no record of any MRI examination having been booked. When this was communicated to Dr Rahilly's wife (who was his practice manager) she made a booking with the hospital for the MRI examination to take place on 30 November 1999. 47 This appeared to be relied upon in Rhiannon's case and in the evidence of Mr Richards as an indication of Dr Rahilly being cavalier in his approach to Rhiannon and not caring about her (T.222-224). The more likely explanation is that either the hospital or Dr Grattan-Smith had not reacted to the letter sent by Dr Rahilly. It seems to me that no adverse inferences ought be drawn from that incident. 48 On 13 October 1999, in accordance with Dr Rahilly's recommendation, Ms Ennis attended the Orana Early Childhood Intervention Centre and was interviewed by a representative from the centre who took a history of Rhiannon's development up to that time. The notes of the Centre make it clear that the appointment for the MRI scan had been made by this date. 49 Doctor Rahilly saw Rhiannon again on 19 October 1999. On this occasion she was accompanied by Ms Ennis and by a family friend, Mark Lancaster. Mr Lancaster died before the matter came to trial but before his death he provided a statement for use in the proceedings. The statement was in evidence before me. 50 Ms Ennis had no clear recollection of this consultation. Her evidence was that Rhiannon was worse "kept crying, irritable, just getting worse with crying". In his statement Mr Lancaster recorded: "(7) On 19 October 1999 I accompanied Judith when she took Rhiannon to see Dr Rahilly. I introduced myself to Dr Rahilly as a friend of the family. When Dr Rahilly was handed Rhiannon's "blue book" to fill out, he said words to the effect of "What do you want, an essay?". Dr Rahilly did not write anything in Rhiannon's "blue book". Dr Rahilly was played a tape of Rhiannon crying which Mark Richards had recorded. From my observations, Dr Rahilly was not concerned about Rhiannon's condition on this occasion." 51 Doctor Rahilly's evidence in chief on this issue is in his statement: "(32) I next reviewed Rhiannon on 19 October 1999 when her parents were concerned that she was crying a lot. On examination I noted she had an infected right ear. I explained to her parents that this could be worsening her irritability and tendency to cry. I prescribed Amoxil. I explained that the antibiotic treatment should help settle some of the irritability and crying. At this review her parents mentioned their concern about the fact that cessation in Rhiannon's development seemed to commence at around the time she was in a day care centre. Her older siblings seemed frightened of the lady providing day care. Whilst there was no sign of non-accidental injury I arranged for a skeletal survey to rule this out as a possibility."

In due course the skeletal review showed no abnormality. This evidence is supported by Dr Rahilly's notes. 52 Despite this difference in recollections, nothing particularly turns on this consultation, except that Rhiannon was clearly no better. As Dr Rahilly noted, some part of the irritability could have been due to her ear infection. The "blue book" may have been produced but Dr Rahilly could not specifically recall it. There was nothing remarkable about it and it contained no useful information, not having been updated since late December 1998. 53 On Sunday, 24 October 1999 Mr Richards telephoned Dr Rahilly at his home. Mr Richards' evidence was (T.228): "Q. Did you speak to him? A. Yes I did. Q. What did you say? A. I asked could she be admitted into hospital. I was not exactly nice about it I know that. Q. Do you remember the precise words you said to him? A. I told him I had had enough, it was fucking bullshit and I wanted her put in hospital. Q. What did he say? A. He said if you feel that strongly about it take her to the hospital so I did." 54 Doctor Rahilly's evidence of this conversation was (T.715): "A. My memory is my wife picked up the phone and told me Mr Richards was on it. I took the phone and said "Hello". He said words to the effect "Rhiannon's no fucking better. She's still crying all the time, whingeing all the time we've fucking had enough, something's got to be done." I said "I think the best thing is to take her up to the hospital and I will ring them and tell them you're coming and at least that will give you a break." And he said to my memory "Right, that's what we'll do" or words to that effect." 55 It became an issue at the trial as to who had suggested that Rhiannon be admitted to hospital. It does not seem to me to matter greatly who made the suggestion except that the evidence of Dr Rahilly was that this was the first time hospitalisation had been discussed by anyone, whereas the evidence of Mr Richards was that he had been suggesting hospitalisation since the first consultation. I am satisfied that this was the first time that hospitalisation was suggested. 56 What does seem clear is that following the conversation with Mr Richards, Dr Rahilly telephoned Dubbo Base Hospital and spoke to a resident or registrar paediatrician and asked that Rhiannon be kept in hospital to give her mother some respite and for observation. Doctor Rahilly faxed a letter to Dr Pryde at the Dubbo Base Hospital setting out his findings in relation to Rhiannon up to that date. The faxed letter was in almost identical form to that sent to Dr Gibson. 57 When Rhiannon's parents arrived at the Dubbo Base Hospital, the hospital refused to admit Rhiannon because it did not have a bed for her, it did not have a referral from Dr Rahilly and she was not acute. After attempts to quieten Rhiannon had failed, this exchange took place between Mr Richards and the admitting doctor at the hospital: "A. I told him if he made me take her home I would smack her in the head with a fucking hammer. Q. Why did you say that? A. Because I wanted her in hospital. Q. Did you intend to injure her? A. No."

As a result, Rhiannon was admitted to the Dubbo Hospital. The hospital notes reveal that the staff were concerned that Rhiannon might be harmed if she were not admitted. The Paediatric General Admission Form of four pages setting out information about Rhiannon was signed by Ms Ennis. 58 Doctor Rahilly telephoned the Dubbo Base Hospital on at least two further occasions on 24 October 1999. Doctor Rahilly had no clear recollection of what was said. The hospital notes, however, fill in those gaps. 59 At approximately 1620 on 24 October 1999 the notes record a conversation between a Dr Hepi and Dr Rahilly. Doctor Rahilly reported on the test results which had been carried out in relation to Rhiannon. He mentioned the suggestion which had been made at the last consultation of a non-accidental injury at the day care centre. Doctor Hepi was told that Rhiannon had been booked for an MRI and neurological review with Dr Grattan-Smith at Westmead Children's Hospital on 30 November. 60 The hospital notes record that at 1930 a conversation took place between Dr Rod McClymont, the locum paediatrician at the hospital, and Dr Rahilly. Doctor Rahilly told him that Rhiannon was suffering from gross developmental delay and that she had last seen Dr Rahilly a week before. Mention was made of the ear infection and the fact that a skeletal survey had been ordered to check on whether non-accidental injury had occurred at the day care centre. Once again the results of the various tests were communicated by Dr Rahilly. Doctor McClymont specifically noted that Rhiannon was twelve months old with severe developmental delay of unknown cause. The parents were at the end of their tether and were concerned that they may harm Rhiannon as she was crying all the time. It is not clear to me whether that note records an impression of Dr McClymont or whether it records something he was told by Dr Rahilly. Doctor McClymont was told about the planned admission under Dr Grattan-Smith at the Children's Hospital for 30 November. As in the previous conversation with Dr Hepi, the possibility of an inter-hospital transfer to expedite that process was discussed. The letter which Dr Rahilly faxed to Dr Pryde was apparently sent after this conversation, probably on the morning of 25 October. 61 To the extent that it is relevant, I am satisfied on the basis of the notes of the Dubbo Base Hospital that the recommendation for hospitalisation came from Dr Rahilly. The suggestion implicit in the evidence of Mr Richards that Dr Rahilly was not particularly concerned about whether Rhiannon went to hospital or not and was generally unhelpful is difficult to reconcile with the hospital notes. These notes show a doctor interested in his patient's progress and trying to assist her by making available all the information which he had. That needs to be looked at against the fact that Dr Rahilly did not have admitting rights to the Dubbo Base Hospital and was not able to be directly involved in Rhiannon's management while she was at the hospital. 62 A further conversation took place on 26 October between Dr Rahilly and a Dr Hart from the Dubbo Base Hospital concerning Rhiannon. As with the earlier conversations, Dr Rahilly had no clear recollection of its content. Once again the hospital notes are of assistance: "Discussion with Dr Rahilly (see faxed letter). He had arranged for neurologist to review who did not think an EEG worthwhile. Can be inconclusive at this age. If he thought the eye rolling was fitting he would treat with anti-epileptic medication anyway…".

This note is important. It provides powerful contemporary support for Dr Rahilly's evidence as to his understanding of what he was told by Dr Grattan-Smith and as to his initial clinical assessment of Rhiannon's unusual movements, ie that they were not seizures. 63 The notes of the Dubbo Base Hospital concerning Rhiannon show that her condition was deteriorating. Rhiannon was placed on a "fitting/behavioural chart" on 25 October, when her eyes were observed to roll back with slight jittering of the body. Doctor Hardacre on 26 October noted episodes which were described as "eye rolling" and "dazed" which were very brief. Upon her discharge from the Dubbo Base Hospital on 27 October 1999, Dr Hardacre recorded the following management plan: · Audiometry. · Refer to Sydney Neurologist (Orange unable to do EEG due to young age). · Discharge today. · Follow up by Dr Rahilly. 64 The entries on the fitting/behavioural chart were: Date Time Duration Description of Episode 25.10.99 1230 5 seconds eyes rolled; slight jitter of body 1600 2-3 seconds eyes rolled back in head 1630 2-3 seconds eyes rolled back in head 1800 10-15 seconds dazed and unresponsive 1940 20 seconds dazed unresponsive, pupils dilated 26.10.99 1600 5 seconds dazed unresponsive to stimuli 1800 10 seconds staring into space, unresponsive to stimuli 0200 10 seconds dazed and unresponsive 0230 60 seconds dazed and unresponsive and full body jerk 27.10.99 0800 20 seconds staring into space unresponsive

65 Rhiannon was discharged from the Dubbo Base Hospital at 1445 hours on 27 October 1999. Dr Rahilly was not contacted by the hospital staff regarding her discharge, nor notified of it (T.749.32). Upon her discharge the hospital provided Ms Ennis with an envelope to be given to Dr Rahilly. The precise contents of that envelope were never identified, but it is clear from the evidence of Dr Rahilly that included in the envelope was a discharge summary from the Dubbo Base Hospital. 66 The nursing notes for the afternoon of 27 October record: "Seen by paediatrician. Hearing test and MRI scan arranged - see previous notes … Mother has just arrived in ward to take Rhiannon home. All appointments given and explained to mother. For follow up with Dr Rahilly - mother to make appointment." 67 The evidence of Ms Ennis was that she next saw Dr Rahilly with Mr Lancaster on 28 October and gave the envelope to him. That evidence was shown to be incorrect. The next consultation with Dr Rahilly did not occur until 2 November 1999 - six days later. During the intervening period, Rhiannon was taken to the Orana Early Childhood Intervention Centre on two occasions - 28 October and 1 November - and was seen by Dr Gibson on 29 October. Regrettably no attempt seems to have been made to communicate to Dr Rahilly the contents of the envelope, ie the discharge summary from the Dubbo Base Hospital, and the observations made of Rhiannon while at the Dubbo Base Hospital and recorded on the "fitting/behavioural chart". 68 Doctor Rahilly was handed the envelope from the Dubbo Base Hospital at the consultation on 2 November 1999. He was told on that occasion that the eye rolling episodes were becoming more frequent and were occurring even when Rhiannon was not frightened. He was told that head nodding was also occasionally seen. After reading the discharge summary from the hospital, Dr Rahilly contacted the paediatrician at the Dubbo Base Hospital and discussed the contents with him. Doctor Rahilly advised Ms Ennis that Rhiannon should be urgently admitted to the Children's Hospital at Westmead as soon as possible. 69 In order to have Rhiannon admitted to the Children's Hospital, Dr Rahilly telephoned Dr Grattan-Smith's Registrar - Dr Bloomfield - and advised him that admission for Rhiannon was required urgently and could not be left until 30 November 1999. Doctor Bloomfield undertook to arrange admission as soon as a bed was available. 70 In his evidence Dr Rahilly identified the head nodding and the spontaneity of the episodes on occasions where Rhiannon had not been startled or frightened as the considerations which led to him arranging for her urgent admission to the Westmead Children's Hospital. 71 Doctor Rahilly played no further part in Rhiannon's treatment after 2 November 1999. As indicated, he did subsequently correspond with Dr Grattan-Smith, Professor Buchanan and Mr Richards and had a further conversation with Mr Richards. Insofar as treatment was concerned, his contribution ceased at this point in time. 72 On 3 November 1999 Mr Lancaster drove Ms Ennis and Rhiannon from Dubbo to the Children's Hospital at Westmead. The trip took approximately five hours. Ms Ennis in her evidence said that she was required to wait for ten hours before Rhiannon was admitted. That estimate was confirmed by Mr Lancaster in his statement. It was not supported by the hospital notes which indicated a period of approximately five hours between Rhiannon arriving at the hospital and being admitted. 73 Upon admission Dr Bloomfield obtained from Ms Ennis a history concerning Rhiannon up to that point in time. The accuracy of that history was a matter of considerable controversy. On behalf of Rhiannon it was submitted that the history was unreliable because of the tiredness and emotional state of Ms Ennis. Certainly parts of the history recorded by Dr Bloomfield are at odds with the evidence at trial of Ms Ennis and Mr Richards. I will return to that issue in more detail when considering the extent of any developmental delay affecting Rhiannon during 1999. 74 Upon her admission Rhiannon came under the care of Dr Grattan-Smith. On 4 November 1999 she was commenced on Nitrazepam (Mogadon) .5 mg twice daily. An EEG test was carried out which showed hypsarrythmia. A preliminary diagnosis of "infantile spasms" was made. On 5 November 1999 an MRI scan of the brain was carried out. 75 Following the introduction of Nitrazepam no seizures were recorded between 6 and 8 November. On 8 November the Nitrazepam was increased to 1 mg twice daily. On 9 and 10 November seizures were again recorded - two on 9 November and three on 10 November. 76 On 10 November a second EEG took place. The result remained grossly abnormal with a picture of modified hypsarrythmia. It was the practice of the Children's Hospital to video patients while they were undergoing an EEG. On this occasion the video revealed Rhiannon actually experiencing a fit. It was generally agreed that the fit was subtle and difficult to identify unless one was an expert. The video of this fit was an exhibit at trial. 77 Following this EEG the Nitrazepam dose was increased to 1 mg in the morning and 2 mg at night. Rhiannon was commenced on oral Prednisolone (a steroid) 20 mg per day. Pyridoxine (vitamin B6), 100 mg daily, was also added. The reason for the increase in Nitrazepam was in case the initial seizure-free period after admission represented a positive response to that substance. 78 Pyridoxine was given in case Rhiannon had Pyridoxine dependent seizures. This is a rare condition where the seizures are resistant to standard anti-epileptic drugs but respond to Pyridoxine. Certain forms of seizures are known to stop abruptly with the introduction of Pyridoxine for reasons currently unknown to medical science. The Pyridoxine was continued in a dose of 100 mg per day for three weeks and then stopped as there was little response. 79 By 16 November there had been no significant response over six days to the Nitrazepam, Prednisolone and Pyridoxine. It was the evidence of Dr Grattan-Smith that at this point in time he considered the use of ACTH (a steroid) but since it had more side effects than oral Prednisolone and required injections and monitoring, he deferred its introduction. The Prednisolone had only been used for six days and it was still possible that it would produce a positive response. 80 Doctor Grattan-Smith decided at that point in time that Valproate (Epilim) ought be introduced to see whether Rhiannon would respond to it. He planned to introduce that treatment subject to a discussion with Rhiannon's parents as to its use. There is no evidence either way as to such a discussion but Rhiannon was commenced on Valproate on 22 November 1999. The initial dose was 100 mg per day, half the usual minimum therapeutic dose. The reason why Valproate was introduced was that studies had shown it to be effective in the treatment of infantile spasms and epileptic encephalopathies in older children, and it had also been shown to be effective against generalised tonic clonic seizures and complex partial seizures. 81 On 26 November, after three weeks on Nitrazepam, two weeks on Prednisolone and Pyridoxine and four days on Valproate, Rhiannon commenced to be treated with Synacthen (synthetic ACTH). Rhiannon was weaned off the Prednisolone from this point in time. The treatment with Synacthen was interrupted briefly when Rhiannon developed a minor viral infection but was recommenced on 1 December 1999. As indicated, the treatment with Pyridoxine ceased at about this time, ie 1 - 2 December 1999. 82 Biotin (another vitamin) was introduced into her treatment on 12 December. This was done (like the Pyridoxine) to address the possibility of a vitamin deficiency dependent epilepsy. On 13 December 1999 the Valproate dose was increased. 83 Rhiannon was discharged from the Children's Hospital on 17 December 1999. She had been trialled on Mogadon throughout her hospitalisation (six weeks), Prednisolone (for a little over two weeks), Valproate (four weeks) and ACTH (three weeks). She had also been treated with the vitamins Pyridoxine and Biotin. 84 On 16 December 1999 Rhiannon, accompanied by Ms Ennis and Mr Richards, consulted Professor Buchanan. There is a dispute as to Rhiannon's condition at the time of consultation. Professor Buchanan described Rhiannon as "vegetative" even though he did not examine her. Such a description is inconsistent with the notes of the Children's Hospital and his own correspondence relating to the consultation. 85 Following that consultation, Professor Buchanan wrote a letter to Dr Grattan-Smith dated 21 December 1999 and described what had occurred: "Thank you for your time on the phone about this youngster. I saw her with her parents on the 16th of December. The story is well known to you and therefore I won't go over it, other than to say that I spent time with them discussing the nature of infantile spasms, and the considerable likelihood that Rhiannon will end up significantly developmentally delayed. At the present time, she is on; Epilim 200mg bd Biotin 10mg a day Synacthen .125mg every third day Nitrazepam 1.0mg bd There has been a recent increase in Epilim and Biotin has been introduced and in conjunction with one, or the other of these, there has been a significant improvement in alertness. I assume that this reflects an improvement in her EEG. I suggested to the family that they leave things alone or perhaps, if they so wished, increase the Epilim by 1mg a week so that over a month, she might be taking 7 ml bd. She is due to see you on the 17th January for a further EEG and a consultation and the family asked if they could come here on the 18th, which is fine by me, if it is OK by you. The only other option that crossed my mind was trying some Sabril, but I would be loath to add that to the present quite extensive cocktail. The Mogadon doesn't seem to have done a great deal and I would wonder if it wouldn't be worth withdrawing that at a later date and perhaps the Biotin if things don't improve over the next month. I hope these thoughts make some sort of sense."

It should be noted that Sabril was a trade name for Vigabatrin. 86 The discharge summary from the Children's Hospital recorded: "Rhiannon has made some minor clinical improvements over these past three days, with improved alertness and responsiveness. She appears unsettled for periods, but is visually more attentive and moving her limbs more vigorously, but we have stressed to her parents the importance of waiting for more long-term changes before drawing any conclusions. Her intake of food and fluid does fluctuate and tends to deteriorate during periods of more constant seizures, but usually with time and patience she is managed without resorting to nasogastric tube feeds. Review by Professor Buchanan was arranged at parents' request on 16.12.99, who agreed with the current management plan, suggesting consideration be given to trialling Vigabatrin in the future if control is not gained otherwise." 87 In relation to future treatment, the following was recorded: "Plans for medication changes: Continue Synacthen at current rate for total of two months (commenced 26.11.99) followed by switching to weaning dose of Prednisone. Increase Valproate dosage to 200 mg bd over the next few days. Continue Biotin for one month (commenced 12.12.99) and then review. Consider introduction of Lamotrigine if further improvements are not seen in the coming weeks (protocol available if required). Vigabatrin be used as a final attempt at seizure control, if it has not occurred otherwise." 88 The discharge summary was signed by Dr Bloomfield. By way of follow up, it recommended transfer to the Orange Base Hospital prior to returning home and referral to the Orana Disability Services and the Department of Community Services since significant support services would be required for Rhiannon's return home. It noted that re-admission had been booked for 18 January 2000 for review by Dr Grattan-Smith, Professor Buchanan and EEG. The most recent EEG before discharge (14.12.99) continued to be grossly abnormal with features of a severe epileptic encephalopathy. The discharge summary contained a diagnosis of "refractory seizure disorder with severe global developmental retardation". 89 There was some disagreement between Professor Buchanan and Mr Richards as to what Professor Buchanan said in the consultation of 16 December. It was Mr Richards' evidence that Professor Buchanan had remarked "Why isn't she on Sabril?" or "She should be on Sabril". Professor Buchanan had no recollection of saying that. Since Sabril was not commenced until 10 March 2000 by Professor Buchanan, I am of the opinion that no such remark was made by Professor Buchanan on that occasion. Mr Richards gave evidence that he showed a video of Rhiannon on that occasion. This evidence was shown to be incorrect. 90 It was Mr Richards' evidence that Professor Buchanan told him on that occasion that if Rhiannon had had an EEG earlier her outcome might have been considerably better than it was. The only evidence from Professor Buchanan as to what he said about an EEG on 16 December is in his letter to Dr Rahilly of 20 January 2000. "I am not sure how best to answer your questions from your letter, but undoubtedly the EEG has a role in the first year of life, as it is in every other age group, but needs to be interpreted relative to the history. It is not clear as to whether there was evidence of seizure activity earlier on in this child, and perhaps that's why an EEG was not done. I don't recollect having specifically said to Mr Richards "that if only an EEG had been done earlier" that things might have been different. I think I did express surprise with hindsight, having heard the story and being aware of the diagnosis, that perhaps something had not occurred sooner. Whether that would have altered the outcome, is another matter altogether. …"

This letter was sent to Dr Rahilly in response to his letter of 27 December 1999 where, amongst other things, Dr Rahilly said: "I have recently talked to the father who said that both yourself and the Registrar told him that "if only" we had performed an EEG and had the New Children's Hospital staff interpret it much earlier, then the fits could have been diagnosed and treated earlier. I was wondering whether this was indeed what was said to the parents and, as I say, what your feelings are about an EEG at this stage." 91 I am of the opinion that Professor Buchanan certainly did say something about why an EEG was not carried out earlier, but whether he did so in the terms which Mr Richards communicated to Dr Rahilly is not clear, particularly the proposition that had an EEG been carried out earlier then Rhiannon's outcome would have been better. 92 As can be seen from the above paragraphs, following the consultation with Professor Buchanan on 16 December, Mr Richards telephoned Dr Rahilly and requested that he make available Rhiannon's medical records. In the course of that conversation it was Mr Richards' evidence that he said to Dr Rahilly "She should have had an EEG earlier". He said that Dr Rahilly was short with him but phoned him the following day to apologise for being abrupt and to explain why an EEG was not arranged earlier. 93 Dr Rahilly's evidence was that only one telephone conversation took place which was a bad connection. It matters not which version is correct. The importance of the conversation or conversations is that they proved to be the catalyst for the letters from Dr Rahilly to both Professor Buchanan and Dr Grattan-Smith on the issue of the need for an EEG and the replies which Dr Rahilly received. That correspondence provides some contemporaneous evidence of the thinking of the major protagonists at the time. 94 For completeness it should be noted that Mr Richards denied that he had ever received the letter referred to in para 52 of Dr Rahilly's statement. He did, however, receive the letter of 27 December 1999 (PX 1 document 20). Since both letters were sent within a matter of days of each other to the same address, it would be surprising if one letter arrived but the other did not. I am of the opinion that Mr Richards received both letters. The contents of the letter of 27 December 1999 from Dr Rahilly to Mr Richards makes more sense in the light of the earlier letter which appears to have been prepared on 21 December 1999 and which is set out in full in para 52 of Dr Rahilly's statement and in his records (PX 1 tab 21). 95 On either 19 or 29 November a conversation took place between Mr Richards and Dr Bloomfield. In the course of that conversation Dr Bloomfield apparently said: "We are cautiously optimistic. We are running out of options. We have already tried a few drugs. There is one drug but they don't want to give it to her at this stage because it causes vision problems. … Peripheral vision problems, however, there are other medications we can try first."

This conversation apparently took place on the telephone. This evidence came from Mr Richards but no evidence was led from Dr Bloomfield to the contrary. It was common ground that this was the only time that Vigabatrin was discussed by anyone from the Children's Hospital with Mr Richards before Rhiannon's discharge on 17 December. 96 It was the evidence of Mr Richards that at some time after Rhiannon's discharge from the Children's Hospital, he suggested that both Dr Grattan-Smith and Professor Buchanan treat Rhiannon. He was told (apparently by Dr Grattan-Smith) that only one doctor could be the treating doctor and that he should choose whom he preferred. He chose Professor Buchanan. 97 Rhiannon was admitted to the Orange Base Hospital on 17 December and discharged on 21 December. There were consultations with the general practitioners, Dr Frater and Dr Gibson. There were three outpatient attendances at the Dubbo Base Hospital. Nothing of significance appears to have occurred between the period of her discharge from the Children's Hospital and when she next saw Professor Buchanan in January 2000. Rhiannon appears to have continued on the same regime of medication as when she was discharged from the Children's Hospital. 98 Rhiannon was seen by Professor Buchanan on 18 and 19 January 2000. She underwent a further EEG on 17 January. The best record of what occurred at those consultations is Professor Buchanan's letter to Dr Gibson of 20 January 2000: "As you know Rhiannon is severely developmentally delayed with a refractory seizure disorder which looks as though it has its basis in infantile spasms. Original EEG's showed hypsarrythmia and were very disorganised. They were not however completely typical of infantile spasms. She has had a number of medications whilst in hospital which seem to have had little effect, and when I initially saw her, she was taking Epilim 200 mg bd, Biotin 10 mg a day, Synacthen .125 mg every third day and Nitrazepam 1mg bd. We reviewed things on the 18th of January when she was still taking this medication and at that time was having seizures daily, mainly after awakening. Her eyes would roll, her mouth opens and she stares. She may make some tongue rolling movements. There has been some improvement in alertness over the preceding month and she was following visually to some extent. She was feeding quite well. An EEG was conducted on the 18th January and was slightly better than the preceding one, but the improvement might best be described as modest. The family had asked if they could attend here in future and in discussion with Dr Grattan-Smith, we agreed to do this. As a result I saw them on the 19th January and we have agreed to: 1. Cease the Biotin. 2. Cease the Synacthen and move to Prednisone. 3. I attach a dosage schedule increasing the Epilim and withdrawing the Synacthen over the next month and moving the Mogadon to a single night time dose. By the 19th February she should be taking 6 ml bd of Epilim and be on half of a 5 mg Mogadon tablet at night. If we could simplify things in this way, we could then look at possibly using alternative medication such as Sabril or Lamictal to try and get improved seizure control. To add something to the existing four medications, is frankly too complex. I accept that these modifications may be associated with a deterioration of seizure control and I have asked the family to contact me should that occur. Otherwise I hope to see them in one month." 99 That subsequent consultation took place and was described by Professor Buchanan in a letter to Dr Gibson of 29 February 2000: "I saw Rhiannon on 24 February with her parents, Mark and Judy. At that time, she was off her Predisone taking 6 ml of Epilim syrup bd and Mogadon 2.5 mg nocte. On this combination, she was much more alert, was interacting somewhat with her environment but continues to have seizures which consist of opening her mouth and tongue rolling and also episodes where her eyes will deviate to the right and flicker. The situation is far from perfect but we are ahead of where we started out from. I attach an overall plan which consists of: 1. Try to increase the Mogadon to 2.5 mg bd. If this makes her unduly drowsy, we would then move to - 2. Trying Mogadon as a 5 mg dose nocte. If with either of these approaches she is able to tolerate the drug but the seizures persist unchanged, we would then move to - 3. Reducing the Mogadon back to the present dose of 2.5 mg nocte and commencing Sabril which comes as a 500 mg sachet. This would involve half a sachet (250 mg) from day one to day four, increasing to 250 mg bd from day four to day seven and then increasing to 500 mg mane and 250 mg nocte from day seven onwards. The plan is to review things in a month whichever way this works out. Sabril is the preferred drug in infantile spasms which is the underlying problem that Rhiannon has, although she is not absolutely typical of childhood infantile spasms. The main problem with Sabril is that one can get a loss of peripheral vision, but her parents are aware of this risk and as she is going to be significantly handicapped anyway unfortunately because of her brain "disorder", this particular side effect is of lesser importance than it might otherwise be. Certainly if the Sabril was to bring the seizures under control, it would be worth persisting with but if not, we would look at moving to Lamictal. Review is planned in a month." 100 Sabril was in fact introduced to Rhiannon's treatment on 10 March 2000. The letter of Professor Buchanan to Dr Gibson of 29 March 2000 needs to be read against that background. "I saw Rhiannon again on the 24th March. As you know, we had introduced Sabril and she became quite drowsy on this and you reduced the dose somewhat. When I saw her, she was taking 125 mg bd plus Epilim 6 ml bd and 2.5 mg of Mogadon nocte. Overt seizure control is undoubtedly better than it was and would appear to relate to the Sabril. As a result, I have suggested increasing the Sabril to 250 mg mane and 375 nocte and reducing the Epilim to 4 ml bd by the 23rd April. I think the Mogadon could be ceased as it really hasn't contributed greatly. We hope to review things in mid-May, having had an EEG the day before. The situation is very far from perfect as you know and Rhiannon's father Mark is quite realistic about the position. He asked me directly if I thought that she would ever walk or speak and I felt obliged to say that I doubted that she would really achieve either, at least not in the foreseeable future. He then began talking about wheelchairs and reorganising his four-wheel drive to accommodate one and so on. I did suggest to him that he was perhaps a little premature, but he clearly has understood that the situation is severe and is not going to improve easily, if at all. Depending upon how things are next time we review the situation, it might be worth looking at introducing some Lamictal which is quite often a reasonably good combination with Sabril in this particular type of epilepsy." 101 The next letter from Professor Buchanan to Dr Gibson was dated 25 May 2000: "I saw Rhiannon again with Mark and his mother Lorraine on the 19th May. She had had an EEG done by my colleague Ernest Somerville the day before and I am glad to report that there was no epileptiform activity at all on it, but there was some slowing of her background rhythms which is not surprising considering her underlying problem and the medication that she is on. At the time, that was Sabril 250 mg mane and 375 nocte and Epilim suspension 4 ml bd. Seizure control has improved dramatically with the last seizure being on the 30th April and the one prior to that, the 13th April. On examination, she weighed 8 kgs and her head circumference was 44.5 cm which is on the second percentile. There has been significant improvement in her alertness and she is much brighter, rolls over and I suspect follows light. She smiles and interacts to some degree. A rough assessment would be that she is functioning at a three-four month level. Her developmental improvement represents the improvement in seizure control, but clearly there is significant brain damage to account for her profound developmental delay as it is now. I have suggested increasing the Sabril to 250 mg mane and 500 mg nocte and leaving the Epilim unchanged with review in August or sooner if necessary. I had a good discussion with Mark about her development and thoughts for the future. In essence I have stressed that her development is very significantly delayed and the outlook for developmental progress has to be guarded. However having got the seizures under control, she at least stands a chance of developing the best of such ability as she has." 102 The last letter which I propose to set out is that from Professor Buchanan to Dr Gibson of 5 July 2000: "It was a pleasure to see Rhiannon again with Mark and Judy on the 30th June. There really has been a dramatic improvement. There have been no seizures noticed in the last couple of months and although she remains significantly developmentally delayed, she is much more alert, is interested in her surroundings and is making an attempt to crawl. She does not sit and there is still some head lag. Her head circumference is static at 34.5 cms. Prior to my seeing her, she had been to the North Rocks Assessment Centre for the blind who felt that her vision was probably adequate. In view of the progress and the fact that Mark and Judy are back together again, I thought it would be wise just to leave things alone with her medication Sabril 250 mg mane and 500 mg nocte and Epilim 4 ml bd. There is no evidence of any side effects and as she is progressing well developmentally, it seems pointless to rock the boat. Review is planned in October or November whenever would suit the family."

At that time Rhiannon was aged one year and eight months. 103 I have replicated the letters from Professor Buchanan to Dr Gibson because they provide a relatively objective description of how Rhiannon was progressing during the first half of 2000. There is a dispute between the parties as to whether Vigabatrin (Sabril) did in fact produce an improvement or whether that improvement was coincidental with the introduction of Vigabatrin. Even if Vigabatrin did produce an improvement, the extent of that improvement is a matter of dispute, ie whether the improvement was immediate and dramatic. 104 As of February 2001 Rhiannon was walking with help and was still seizure free. Because of the eye problems associated with it, Professor Buchanan was planning to withdraw Vigabatrin in due course.

Rhiannon's development 105 A matter which was significantly in dispute was whether Rhiannon was developing normally until August/September 1999. There are a number of reasons why this question is important. It impacts on the accuracy of the diagnosis of Dr Rahilly. It also impacts on the question of liability in that Rhiannon's claim is that earlier diagnosis and treatment could have made a difference to her long-term outcome. 106 Its importance on that issue was summarised in the plaintiff's submissions as follows: "If, as the defendants maintain, Rhiannon was destined to be just as disabled as she now is even if her infantile spasms had been diagnosed and treated earlier, then Dr Rahilly and Dr Grattan-Smith's negligence caused her no harm. But if, as the plaintiffs maintain, Rhiannon could have been better off neurologically than she now is with earlier diagnosis and treatment then the defendants' negligence did cause her some injury loss and damage." (Submissions p 88.) 107 The submissions on behalf of Rhiannon relied upon the evidence of her parents given at the trial and on the evidence of family friends, who had the opportunity to observe Rhiannon since her birth. The evidence of Dr Borg to the effect that she could judge if a child was abnormal by looking at it and she didn't think that Rhiannon was abnormal (T.61.6, 66.20) was also relied upon. 108 The defendants in their submissions relied upon what was described as "contemporaneous histories" given by the parents, on the notes of Doctors Frater and Gibson, and on the video material of Rhiannon in the pink jumpsuit and using the walker as that material was interpreted by Professor Buchanan, Doctors Antony, Hopkins and Wise. 109 The evidence of Ms Ennis at trial was that Rhiannon had developed like her other three children, had smiled from six-eight weeks of age, laughed, babbled, would reach out for objects such as keys, rattles, dummies and toys and hold onto them, could roll from front to back and from back to front, responded to voices and to faces and was trying to crawl. She had in effect noticed no abnormality with Rhiannon's behaviour until shortly before she consulted Dr Rahilly. It was appreciated by both sides that her evidence was important because she was Rhiannon's primary carer. 110 The defendants challenged her evidence at trial by referring to the note of Dr Frater of 6 September 1999 that Rhiannon was "not hearing and not crawling yet". The court was asked to infer from that and the further note "? needs paeds assessment" that either Ms Ennis or Dr Frater had some concern about Rhiannon's developmental progress at the time of that consultation. Although Ms Ennis was definite that nothing was said to her about seeking a paediatric assessment (T.114.3), it is clear from her evidence concerning this consultation that she did not have a particularly good recollection of it (T.112-114). I draw no adverse inference from the fact that Dr Frater was not called by either side. 111 It seems clear from the records of Dr Gibson relating to the consultation of 20 September 1999 (paras [20] - [21] hereof) that developmental delay was a concern of his at that time. When his note is taken with that of Dr Frater it seems likely that developmental delay was a concern when Dr Frater was consulted and that the recollection of Ms Ennis is incorrect on that issue. I draw no inference adverse to either side from the fact that Dr Gibson was not called. 112 The history given by Ms Ennis to the Orana Early Childhood Intervention Centre is not consistent with her evidence at trial. On 13 October 1999 she gave this history: "Rhiannon well during early stages, not much response to parents - > limited smiling, not interested in people, not interested in toys, limited looking around …" 113 The history given by Ms Ennis to the Dubbo Base Hospital on 24 October 1999 is also inconsistent with the evidence at trial. "Behind in communicating skills, doesn't really respond… Behind with milestones, doesn't sit up." 114 On admission to the Children's Hospital on 3 November 1999 the following history was recorded by the Registrar, Dr Bloomfield: "Twelve months old. . 4 months of - head-nodding and hyperextension - eyes rolled back. 3-4 x per day. Occurs in response to noise Also without stimulus. Occurs especially after waking. . In association with crying and being v. upset frequently for 4 months. Can last all day, normally followed by sleep. . Blank staring episodes, last about one min. Occurs 1-2 x per day. Mum feels she has deteriorated over the past 4 months. (eg more floppy, less alert) No smiles in response to people ever. No babbles or giggles ever. Mum: unsure of hearing - no response to voice. - Concerned about deafness. Concern about vision - doesn't regularly fix and follow. Poor head control - momentary lift when prone. Rolling - back to front in past, stopped 4-6 months ago. Front to back never. No grasp/reach for objects." 115 This history taken by Dr Bloomfield was attacked on the basis that Ms Ennis was tired at the time after a five hour car trip and after waiting in the hospital for at least five hours. Although Ms Ennis did not herself do the driving, it is quite likely that she was very tired and upset at the time the history was given. Nevertheless, she would have been aware of the importance of giving an accurate history at this time. Tiredness might explain why things were left out but would not explain statements which were wrong. There is also an essential similarity between this history and other histories given by Ms Ennis at about this time. There is no basis to suggest Dr Bloomfield's note-taking was inaccurate and this was not suggested in cross-examination. I am of the opinion that the history given to Dr Bloomfield was a reasonably accurate record of Rhiannon's development up to that time. 116 These histories are reasonably consistent with the evidence of Dr Rahilly as to what he was told by the parents in the first consultation on 21 September 1999. I have concluded that the evidence of Ms Ennis given at trial on the issue of Rhiannon's development is unreliable. The histories given by her in September, October and November, unaffected by the pressures of litigation, are more reliable. That conclusion is supported by her evidence under cross-examination. When pressed on matters of controversy her evidence was inconsistent and contradictory. Her evidence as to the consultations with Dr Borg and Dr Frater (T.107-114) provide a good illustration of this. 117 The evidence of Mr Richards on this subject at trial was that Rhiannon was developing in the same way as her brother, would smile, laugh, giggle, responded to her name being called, could roll from back to front, could roll from front to back, held things in her hand and had started to drink from cups. (It was never clarified whether this meant reaching out for a cup or drinking from a cup which had been placed in her hand.) 118 That evidence is inconsistent with the histories given by Ms Ennis to Dr Rahilly, the Orana Early Childhood Intervention Centre, the Dubbo Base Hospital and the Children's Hospital as indicated above. It is also implicitly inconsistent with Mr Richards' apparent suggestion to Professor Buchanan that there might be some temporal correlation between Rhiannon's immunisation in April 1999 and the onset of her illness (T.509.48-510.58). I have already indicated why I do not accept Mr Richards' explanation of why he told Dr Rahilly that Rhiannon had not smiled. 119 Dr Borg in a letter dated 28 January 2002 to the plaintiffs' solicitors said: "The first visit - 25.8.99. The child had her R ear inflamed. I gave her some Amoxil which cleared it up. I feel sure I would have had a chat with the mother re: any other symptoms. I certainly would have recorded any history of eye rolling or head-nodding and would have urgently got a paediatric opinion …" 120 In a later letter of 15 February 2002 she advised that she would only obtain a full developmental history for any child if the child appeared abnormal or backward, or the mother mentioned any special symptoms. 121 Her evidence at trial was that she did not observe any signs of global development delay (T.39.52) and had she been given a history of eye rolling or head-nodding, she would have recorded it. Under cross-examination it became clear that Dr Borg had no recollection of the consultation. It was also clear that Dr Borg had no particular knowledge of developmental milestones in very young children. An extract from the cross-examination gives the flavour of her evidence: "Q. I am asking you whether it accords with your understanding that a child does that normally about the nine month mark? A. No idea. Q. A child of about nine months looks in the direction of falling and fallen toys? A. Yes. Q. Did you have an opportunity to assess that with Rhiannon? A. I'm sure she did. Q. Did you have an opportunity to? A. I'm sure she did. Q. What? A. I told you before sir I cannot remember this consultation at all. Why are you going through all this finicky bit. (T.69) … Q. Did Rhiannon? A. I can't remember sir. Q. What attempt did you make to assess whether or not? A. I have no idea. I can't remember. Q. To be fair it is not something you were trying to assess in that consultation was it? A. No but I can't remember what happened. Just getting fed up to the teeth. Q. I'm sorry I missed that. A. I'm just getting fed up that is all. I don't think this is for me at all. I think you should be talking to paediatricians." (T.69) 122 I found the evidence of Dr Borg to be unhelpful. She had no recollection of the consultation. The effect of the evidence was no higher than speculation that had Rhiannon displayed any signs of developmental retardation, she would have noticed those and noted them down. This was in the context of a consultation for an ear infection with a child she had never seen before and the child being nursed by her mother (T.1096.6). The evidence of Dr Borg provides no support for the proposition that Rhiannon was not suffering from some developmental delay when Dr Borg treated her on 25 August 1999. 123 When Professor Buchanan took over the treatment of Rhiannon in January 2000, he received a history from her parents that she had never been able to grasp objects (T.440.40, 568.44), that she had never made vocal noises, and that she did not sit, creep or crawl. That history was inconsistent with the evidence of Ms Ennis and Mr Richards that Rhiannon was reaching out for objects and holding onto them. 124 The family friends who gave evidence of their observations of Rhiannon were Barbara Lancaster, who regularly babysat her, Diane Dowton who used see her approximately three times per week from the age of three months when her parents visited the take-away chicken shop and Rosita Wade who had seen Rhiannon two or three times each week during her first three months of life but less frequently thereafter. A common feature of their evidence was that Rhiannon smiled, would reach out for things and grab them and was responsive to faces and voices. All of those persons were parents and it was submitted were able to judge the developmental progress of Rhiannon by reference to their experience with their own children. There was similar evidence in the statement of Mark Lancaster who it will be recalled died before the hearing. He was not a parent. 125 The evidence of Mss Lancaster, Dowton and Wade was given in the context of litigation and comprised their statements and oral testimony. I am sure that they genuinely believed what they were saying was the truth. Their evidence however sits uneasily with the statements made by Ms Ennis at a time when litigation was not contemplated to Dr Rahilly, the Orana Early Childhood Intervention Centre, the Dubbo Base Hospital, the Children's Hospital and to Professor Buchanan. 126 There is another difficulty with their testimony. They were not observing Rhiannon from the point of view of determining her state of development. Their observations were intermittent at most. In children as young as Rhiannon was at the relevant time, it seems to me that it would be difficult to determine developmental delay even for the parents of the child. That was the evidence of Doctors Antony, Hopkins and Wise. 127 I base that conclusion also on the video evidence. I watched the video material on many occasions. Unaided by expert opinion, it seemed to me that the sequences showing Rhiannon in the pink jumpsuit and using the walker demonstrated a normal infant of her age. No doubt the same impression was created in those family friends on the occasions when they came in contact with Rhiannon. 128 That was not the opinion of paediatric experts including Professor Buchanan when they viewed those sequences. In that regard the video provides important evidence of an objective kind, which can be assessed by experts in the paediatric field. It provides a better guide to Rhiannon's development than does the subjective recollection of family friends. 129 The evidence of those family friends needs to be further qualified. That of Ms Wade is limited in that her contact with Rhiannon after May 1999 was infrequent. It is difficult to see how she could have formed any opinion as to Rhiannon's development between May 1999 and September 1999. 130 Ms Dowton primarily observed Rhiannon in a pram or being nursed by her mother. Specifically she agreed that she never saw Rhiannon roll, creep, crawl or try to stand up or vocalise. Ms Lancaster's evidence as to Rhiannon's normal development was strongly influenced by her belief that there had been a significant deterioration in September. (T.17) 131 The evidence concerning the video came from Mr Richards. Ms Ennis gave no evidence about the video, nor of Rhiannon's age when the video was taken. There was evidence from Professor Buchanan to the effect that he was led to believe by the parents that the pink jumpsuit video was taken when Rhiannon was approximately six months old. He apparently first saw that video on 17 October 2000 (T.517.48-T.518.3). This is the only evidence which supports the proposition that the video was taken when Rhiannon was aged six months. 132 The video episodes came from longer sequences. They were put together by Mr Richards for use in these proceedings. In chief (T.203-205) he was unable to identify the date when the episode with Rhiannon in the pink jumpsuit was taped. He was unable to explain what had happened to the original tapes from which the episodes were taken. He thought they might have been filmed over. Mr Richards agreed that he had selected tape episodes which he thought might be useful in the case. (T.262.48) 133 Under cross-examination Mr Richards gave this evidence as to the date of the episode showing Rhiannon in the pink jumpsuit. "Q. Have a look please at the letter I now show you from Maurice Blackman Cashman to Blake Dawson Waldron dated 4 October 2001. Do you recognise that as a letter from your solicitors to the defendants' solicitor? A. I do. Q. The letter opens: Please be advised that to the best of Mr Richards' knowledge and belief the following dates and ages for Rhiannon on the video footage are as follows? A. That is correct. Q. It goes on to say: Start of video lying on floor May '99? A. That is correct. Q. It attributes up until episodes which you told us was the episode at the Tamworth Lookout, everything before then is said to be approximately May '99 about seven months of age? A. As I said I cannot be a hundred percent on that. Q. But is it fair to say that doing the best you can the episodes on the video prior to the one showing Rhiannon being carried by the mother up the steps of the Tamworth Lookout, the ones prior to that, to the best of your recollection, without being a hundred percent, is about May '99 at about seven months of age? A. As I said I cannot be one hundred percent. Q. I think we all understand that but is it correct that to the best of your knowledge and belief as this letter suggests those episodes were May '99. A. I am not sure whether these dates are a hundred percent right or not. HIS HONOUR: The question is; he says it assumes you won't be a hundred percent. Do the best you can. A. This was the film clips were approximate, taken without the intention of it ever being here towards the court. Where I say May it may have been June, it may have been July. I was clutching at straws when I was writing this. Q. Mr Brereton is asking a fair question. Are you saying you cannot be a hundred percent but what is your best recollection? A. I don't have one. All I can say now when the walker one was, your Honour, and the ones after. BRERETON: Q. We know that Mr Richards but you were able to tell your solicitors weren't you to the best of your knowledge and belief they were taken in May; that is what you told your solicitors wasn't it? A. Yes. Q. And that was your best knowledge and belief without being a hundred percent about it wasn't it? A. At the time, yes. Q. Has that changed since? A. Well I'm not sure if it is a bit after it, that's what I'm saying. Q. It could have been a bit after May 1999 could it? A. It could have been. Q. It could have been June, it could have been July? A. It could have been. It could have been August." (T.264-5) 134 It is significant that Mr Richards in that exchange did not at any time suggest that the video episode in the pink jumpsuit may have predated May 1999. What he was concerned about was whether or not it was later than May 1999. It follows that if the video was taken later than May 1999 Rhiannon's developmental delay would have been more severe. The conclusion I have reached is that the episode when Rhiannon was wearing the pink jumpsuit occurred in May 1999 at the earliest but may have occurred later than that. It is common ground that Rhiannon was seven months old in May 1999. 135 When the pink jumpsuit episode was shown to Professor Buchanan, it was his opinion that the behaviour there depicted was that of a child of about five-six months of age. (T.507.34, 569.11) 136 Dr Jayne Antony was a paediatric neurologist qualified on behalf of the defendants. In her report of 8 January 2002 she said: "The video film allegedly commences in May 1999 when she was seven months of age. During the recording of seven months she is able to flex her legs, grab her feet with her hands and roll to the side. When she is lying on her stomach she lifts her head and rests on her elbows, whereas at seven months I would have expected that she would fully extend her upper limbs and lift her head and body off the ground. She does regard her hands in a very self-absorbed way and is also mouthing her own hands and other people's hands, which is the behaviour of a much younger child. She does not make any attempt to creep or crawl forward and certainly does not get up on all fours. Her sounds are very limited and do not contain the polysyllabic sounds, which I would expect for a seven month old baby. There is no observation of her sitting, which at seven months she should be able to do for a few seconds at least and there is no observation of her supporting her weight when held to standing. I do not believe that her eye contact with her sister is normal and it takes the father to tickle her abdomen to get her to laugh and squeal, whereas most children of her age would be much more vocal and interactive. There is no observation about her fine motor controls such as her reaching out and transferring, so that aspect cannot be judged." 137 It was the opinion of Dr Antony that the video sequence in the pink jumpsuit indicated a developmental level of between four and five months. She specifically did not agree with the opinion of Dr Hopkins that the video sequence indicated a level of developmental progress appropriate to a child of five to six months of age (T.1126.47). 138 Doctor Ian Hopkins was a child neurologist qualified on behalf of the defendants. He said in his report of 15 February 2002: "On the basis of the videos it is not possible to state precisely the time at which Rhiannon had onset of her developmental delay. There are no clips of video prior to seven months, so from the information on the video one can only state what the situation has been from the age of seven months and onwards. At seven months she shows a level of developmental progress that I think is appropriate to a child of five-six months of age, rather than her chronological age of seven months. In the first three brief segments, up to approximately three minutes twelve seconds into the video she is seen to be attentive in interacting with her sibling, able to roll on her back onto her tummy but with a little more difficulty than I would expect, and in one segment she appears to have a little difficulty in extracting her left arm from underneath her at the completion of the roll, but fairly good head control in that she is able to lift up her head quite well when lying prone, and also lifts her shoulders off the floor, and has some pre-speech babbling. There are no segments that demonstrate that she can reach out to grasp objects, a milestone that is usually achieved at approximately four months of age, although there were no toys in her immediate vicinity. She certainly was able to grasp her toes when lying on her back, but this is a more primitive milestone than reaching to grasp objects. The grasping of her toes is well shown in the video at approximately the five minute stage. She laughs in response to tickling, but there were not video segments at this stage which showed well whether she smiled and interacted as well as one would expect for a child of seven months. My overall conclusion as stated above was that she was a month or two behind in her developmental progress … Although I cannot be more definite about this after viewing the video her developmental progress at the age of seven months was certainly a little better than I had thought it would be from the accounts I had read, such as Dr Rahilly's records of early October which noted that her father felt that she had yet to smile properly. From the level of development that she displays in the video when she was approximately seven months of age, it is quite possible that her developmental delay had its onset a little later, eg at closer to six months of age than my previous estimate of four-five months."

Doctor Hopkins did not resile from that opinion under cross-examination. 139 Doctor Graeme Wise was a paediatric neurologist qualified on behalf of the defendant. He commented on the video in his report of 15 March 2002: "Reaching should be well developed between four and five months and transferring by seven months. Stable sitting has usually been obtained by six-seven months. What I take to be the earliest video clips showing her rolling back to front and front to back and when on her front she gets her head well up and looks around (a four-five month skill) we do not see her smiling socially (grimacing in response to tickling seen in the video clip is not a social smiling response), nor reaching - she does mouth her dummy and a cloth."

And in the report of 30 April 2002: "My video machine produced rather different timings than indicated in the schedule provided by Maurice Blackman Cashman, so I'll identify each segment and give my timings and observations. 00-1:50 Lying on floor with pink jumpsuit on. Activity noted - rolls back to front, both with and without assistance - lying prone, with head well up taking weight on forearms - looks around to both sides, conjugately. Mouths right hand - alert. No smiling or reaching noted. Comment - nothing observed in this segment more developmentally advanced than 4-5 months. 1:50-5:11 On floor with mother - grey top - brief segment - perhaps one fleeting smile. Segment continues lying on floor with pink suit - grips feet, hand to mouth. Squeals, and grimaces when vigorously tickled. This is not considered to be "social smiling" from the point of view of developmental assessment. 5:11-6:02 Carried upstairs by mother - looking around - no other significant observations to be made. … Assuming the dates of the segments are accurate, the series taken at 7-8/12 of age do not demonstrate any activity more developmentally advanced than 4-5/12 nor smiling or interactive behaviour such as one would expect to see by six weeks - and this correlates with the history taken by Dr R and given by mother and father at various times during the illness, and suggests that Rhiannon was substantially delayed before the onset of seizures."

The cross-examination of Dr Wise was not directed to any of these matters. 140 It was suggested by Professor Buchanan in correspondence and in his evidence that Rhiannon was not developmentally delayed but what was mistaken for developmental delay was in fact regression which was being observed, ie that Rhiannon had reached appropriate age milestones but as a result of the onset of her seizures had regressed from that level. 141 The difficulty with that proposition is that Ms Ennis in the various histories referred to did not describe regression but developmental delay. There is of course no question that there was significant regression between October 1999 and when Rhiannon was in the Children's Hospital. That was at a period when the seizures were well established and relatively uncontrolled. 142 I have concluded that Rhiannon was developmentally delayed and that her development had not progressed beyond that expected of a child of between five-six months of age. All of the doctors, who considered this question, agree with that assessment although Doctors Antony and Wise would put the level of developmental delay at four-five months. It follows that such developmental delay was well established by the time Rhiannon first saw Dr Rahilly.

Liability of Dr Rahilly 143 The following particulars of negligence were pleaded against Dr Rahilly.

(b) That he failed to act on the clinical history obtained, specifically Rhiannon's normal birth and early development, and late onset of eye-rolling behaviour, to determine a cause of this behavioural change.

(c) That he failed to arrange for EEG examination in a timely manner or at all.

(d) That he failed to respond to the complaints of Rhiannon's parents that he manage Rhiannon's deteriorating condition. 144 Guidance as to the approach to be followed when assessing these questions is provided in Rogers v Whitaker (1992) 175 CLR 479 at 489: "The duty of a medical practitioner to exercise reasonable care and skill in the provision of professional advice and treatment is a single comprehensive duty. However the factors according to which a court determines whether a medical practitioner is in breach of the requisite standard of care will vary according to whether it is a case involving diagnosis, treatment or the provision of information or advice; the different cases raise varying difficulties which require consideration of different factors. Examination of the nature of a doctor-patient relationship compels this conclusion. There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to a patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill. … Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play." 145 Accordingly the standard of performance expected of Dr Rahilly was that of a general paediatrician in rural practice. The question to be decided is whether Dr Rahilly unacceptably departed from the standards expected of a general paediatrician in rural practice in relation to the particulars of negligence pleaded. The fact that Dr Rahilly was in rural practice is a relevant circumstance in that access to sophisticated equipment was not as readily available as it would be in the city. Specifically there was no EEG machine available in his region suitable for use with an infant. 146 Before analysing the competing submissions it is useful to have regard to the cautions in Rosenberg v Percival (2001) 205 CLR 434: "In the way in which litigation proceeds, the conduct of the parties is seen through the prism of hindsight. A foreseeable risk has eventuated, and harm has resulted. The particular risk becomes the focus of attention. But at the time of the allegedly tortious conduct, there may have been no reason to single it out from a number of adverse contingencies, or to attach to it the significance it later assumes. Recent judgments in this Court have drawn attention to the danger of a failure, after the event, to take account of the context, before or at the time of the event, in which a contingency was to be evaluated." (Gleeson CJ para 16 p 441)

And: "This reflects the fundamental proposition that the law demands no more than what was reasonable in all the circumstances of the case. In the words of Barwick CJ in Maloney v Commissioner of Railways (NSW): "The respondent's duty was to take reasonable care. … It is easy to overlook the all important emphasis upon the word 'reasonable' in the statement of the duty. Perfection or the use of increased knowledge or experience embraced in hindsight after the event should form no part of the components of what is reasonable in all the circumstances." More recently it was said in Perre v Apand Pty Limited that: "It needs to be kept in mind … that the criterion is 'reasonable foreseeability'. Liability is to be imposed for consequences for which [the respondent], judged by the standard of the reasonable man, ought to have foreseen." (Gummow J para 68 p 456) 147 Although the other particulars of negligence were not abandoned, the thrust of the case against Dr Rahilly was that an EEG should have been performed soon after his telephone conversation with Dr Grattan-Smith on 30 September 1999. Such an EEG was not carried out until 4 November 1999. It is this delay of about four and a half weeks in Rhiannon being diagnosed as suffering from seizures which is relied upon against Dr Rahilly. It should be remembered that some of that period (from 27 October 1999) was in part due to the discharge summary from the Dubbo Base Hospital not being made available to Dr Rahilly until 2 November 1999. 148 It was submitted that the history taken by Dr Rahilly was wrong in a number of important respects. This occurred because the initial consultation was rushed and because he did not resolve the conflict between Ms Ennis and Mr Richards (ie whether, and if so when, Rhiannon first smiled). As a consequence of this flawed history taking Dr Rahilly wrongly diagnosed Rhiannon as developmentally delayed thereby distracting him from her real problem which was seizures. 149 This submission is not made out. I have found that when Rhiannon saw Dr Rahilly on 21 September 1999, she was already significantly developmentally delayed (ie eleven months old but at a developmental stage of no more than five-six months). There is a large degree of consistency between the history taken by Dr Rahilly and that taken by others at about that time (Orana Early Intervention Centre, Dubbo Base Hospital and the Children's Hospital). The only specific error identified in Dr Rahilly's history is the attribution of a child to Mr Richards. It is also clear that Dr Rahilly's diagnosis of developmental delay was based not only on the history but also on his examination of Rhiannon at the time. 150 I am not persuaded that there was any breach of duty on the part of Dr Rahilly in his history taking on 21 September or subsequently. Support for that conclusion is provided by Dr Christopher Ingall, a consultant paediatrician practising in Lismore, who was qualified on behalf of the defendants, in his report of 31 January 2002. I have already indicated why I prefer Dr Rahilly's evidence as to what took place in these early consultations. 151 It was submitted that after the second consultation on 27 September, Dr Rahilly should have suspected that Rhiannon was suffering from seizures and that he did have such a suspicion. Some comment should be made here on the use of the words "suspicion" and "suspect" in the case put on behalf of Rhiannon. As is set out in the Macquarie Dictionary (3rd ed) the words have the following meaning relevant to this case: "Suspect: To imagine to be the case or to be likely" "Suspicion: Imagination of anything to be the case or to be likely." 152 Doctor Rahilly at no time agreed that he suspected seizures in the sense just referred to. On the contrary he made it clear that insofar as seizures were concerned, they formed part of his differential diagnosis in that he considered them to be a possible diagnosis. At no time did he agree that he considered seizures to be the likely diagnosis until he received the discharge summary from the Dubbo Base Hospital. (T.723.40, 730.10, 762.40, 763.36.) There is also the telephone note in the Dubbo Base Hospital notes para [62]. 153 The cross-examination at T.731 is instructive: "Q. Subsequently on 30 September you telephoned Dr Grattan-Smith? A. Yes. Q. After there had been further investigations to eliminate organic problems? A. Yes. Q. And you telephoned Dr Grattan-Smith because you suspected seizures? A. I had come to the clinical conclusion that they weren't seizures at that stage, my concept was that you can do medical investigations, right, as compared to clinical assessment, to back up your clinical decision. Dr Grattan-Smith said I had to rely on my clinical decision so that's what I did. Q. And the answer to my question is you telephoned Dr Grattan-Smith because you suspected seizures, correct? A. No, not correct. Q. So are you saying that by the time 30 September came around your suspicions of seizures had been allayed? A. No, what I'm saying is that I rang him for a whole variety of reasons. I had a child who was significantly delayed, who was irritable, who clearly needed more intensive investigation than we could provide in Dubbo, and I asked him to help me arrange that. And then as part of that, I made it clear that I considered fits, and he said, I'll have to rely on my clinical decision, so I didn't ring him just because of the fits. That's what I am saying, there was a whole variety of reasons to ring him. Q. Did you tell Dr Grattan-Smith that you had considered fits but came to the conclusion that she probably wasn't having fits? A. I said that was my clinical impression. Q. And then he said, according to you, on that basis there is no need for an EEG, it wouldn't be useful at this stage. Is that right? A. He didn't say exactly that. Q. Didn't he? A. No. As I've said what he said - I can try and repeat it. I said "I suppose we should do an EEG" he said "No, no at this stage in particular an EEG isn't useful to decide if an episode is a fit, you have to rely on your clinical decision." And I said that was my clinical decision." 154 Unfortunately the effect of some cross-examination of the defendants' witnesses as to whether Dr Rahilly should have ordered an EEG, was vitiated because the scenario put was what Dr Rahilly or another hypothetical paediatrician should have done if he or she suspected seizures (ie that seizures were a likely diagnosis). That was clearly not Dr Rahilly's state of mind. The correct question was what Dr Rahilly should have done if he regarded seizures as a possibility. 155 The persistent use, both in chief and in cross-examination, of the words "suspect" and "suspicion" without defining whether the concept being put was likelihood or possibility proved unhelpful. On a number of occasions it was not clear whether a witness was talking in terms of possible diagnosis or likely diagnosis of seizures. An example of this elision of concepts is in the cross-examination of Dr Manson (T.1187.1-.57, 1188.4-.10). 156 Whether Dr Rahilly should have suspected seizures is quite a different question. It was submitted that he should have had such a suspicion in the sense that he should have regarded seizures as the likely diagnosis because of the following factors:

(i) Rhiannon had recently started rolling her eyes back.

(ii) Rhiannon's body stiffened and extended and she threw her head back when her eyes rolled back.

(iii) Initially this happened in response to noise or being startled, but had started to happen more spontaneously.

(iv) Dr Rahilly had actually observed one of these episodes.

(vi) He was aware that Rhiannon was developmentally delayed.

(vii) He knew that EEGs were used in the diagnosis of seizures. 157 In relation to factors (i), (ii) and (iv) Dr Rahilly did not adopt the proposition that Rhiannon "threw her head back when her eyes rolled back". His evidence was: "Q. Both parents told you of the eye rolling behaviour in conjunction with an extension of the neck? A. A general stiffening of the body including the head. Q. Stiffening of the body, and a throwing of the head backwards; correct? A. More [demonstrated]. I don't know how to describe that sir for the tape but it wasn't - I don't - what they described is not so much a flexing of the head back, but a whole neck going back [demonstrated]. I don't know whether that is - it's just a subtle difference I suppose, but that is what they described, more like that, than like that [demonstrated]." (T.733.48) 158 Dr Rahilly himself observed one of these episodes on 21 September and when he asked whether it was typical, the parents answered in the affirmative (para [30]). Dr Rahilly described what he himself saw in these terms: "I observed the body tensing, the head going slightly back and a very fleeting short lived rolling of the eyes up."

I am not satisfied that as of 21 September Rhiannon was in fact "throwing her neck back" in the vigorous way submitted and put to the defendants' witnesses. Even after her admission to the Children's Hospital, Rhiannon's seizures were described as subtle. 159 It was submitted that Dr Rahilly did not know that eye rolling with extension and throwing back the head in response to noise or other stimulus supported a diagnosis of seizure. What Dr Rahilly in fact said in the passage cited was: "Q. Now you say the first and second consultations which were 21 September and 27 September, the eye rolling was only in response to noises or being startled, is that right? A. Yes, sir. Q. And it was not spontaneous? A. Yes, sir. Q. And suggests that eye rolling when startled is also consistent with seizure is it not? A. Not if it is just fleeting and in response to loud noises then unlikely to be a seizure. That is my understanding." (T.763.9)

It was never suggested by any expert that an event which was fleeting and in response to loud noise was likely to be a seizure. 160 Professor Buchanan, who gave evidence in Rhiannon's case, said that eye rolling when startled is consistent with seizures. It was submitted on the basis of that evidence that Dr Rahilly's failure to attribute those symptoms to seizures involved breach of duty on his part. 161 Such an approach is rather too simplistic. When those matters were put to Dr Rahilly: "Q. If you assume Professor Buchanan gave evidence as to eye rolling when startled is consistent with seizures, do you disagree with that? A. I would have to not only hear exactly what he said but need to ask more questions before I can comment on that." (T.763.24) "Q. You were asked to assume that Professor Buchanan had said that there was an association between seizures and eye rolling in response to startled or to startling events and whether, had he said that, you would disagree and you answered "you would have to hear exactly what he said and ask further questions". What are the further questions you would want to have asked? A. Primarily I think I would like to talk to him about whether a fleeting, in other words short lived response to a fright such as a noise was what he meant or whether he meant to trigger a series of these stiffening eye rolling episodes which is what you see in Salaam infantile spasms where it comes in runs. Q. In infantile spasms in your experience is it or not the case those runs might follow a startle? A. It has been noted, yes. Q. What about a solitary episode, not in a run? What, in your experience, is the significance of that being related to a startle? A. Well it means it is very unlikely to be a fit." (T.816.15) 162 Dr Rahilly was in the best position to make that assessment since he was the first medical practitioner to have observed one of Rhiannon's episodes. 163 What seems to have been the case is that these early episodes, which subsequently turned out to be seizures, were quite subtle and difficult to identify. This can be seen from the reaction of the specialists at the Dubbo Base Hospital. At the time of her admission, Rhiannon had deteriorated from the stage she was at when Dr Rahilly saw her in September in that the episodes were occurring with sufficient frequency to cause the hospital to establish a chart to assist in diagnosis. (See para [64].) Even then the specialists at the hospital were not prepared to make a diagnosis of seizures. This appears from the summary of Dr McClymont, a locum paediatrician (PX1-24). 164 As to factor (iii), it was submitted that Dr Rahilly's use of the words "more spontaneously" in his letter to Dr Gibson of 4 October should be taken as an admission by Dr Rahilly that the episodes were occurring spontaneously without any triggering event. That being the case such spontaneous occurrences were more consistent with seizures than anything else. 165 When one looks at the context in which the words "more spontaneous" were used (para [28]) it is tolerably clear that Dr Rahilly was using the word "spontaneously" in a rather loose fashion. He confirmed this under cross-examination (para [38]) and: "Q. You then say "but recently has happened a bit more spontaneously"? A. That is what I say, it is a bad use of English, I agree with that. I would have no motivation - if they were spontaneous I would have just said spontaneous and told Dr Grattan-Smith that. No reason for hiding it. Q. You had been drawing a distinction, surely, about what had been happening up until recently on the one hand and what was happening more recently on the other? A. I was saying they became more easily elicited and used a clumsy phrase. Q. You were saying up until recently they only occurred when there was a loud noise or the child was distressed but after that period they were happening more spontaneously weren't you? A. I can only repeat what I said already. I meant by that and I agreed it is poor English, it is more easily elicited and if they were spontaneous I would have written that and told Dr Grattan-Smith that. More spontaneous is a meaningless phrase. I should have said more easily elicited. It is either spontaneous or not." (T.795.54, 796.1) 166 Not only does the explanation of Dr Rahilly easily fit the context in which the phrase was used in the letter, it fits easily with the reason why Dr Rahilly urgently referred Rhiannon to the Children's Hospital after he was given the discharge summary from the Dubbo Base Hospital. The significant change was the frequency in episodes, their spontaneity and the fact that Ms Ennis told him about head nodding. (T.791-793) I do not accept that Dr Rahilly was aware that Rhiannon was spontaneously rolling her eyes before he received the discharge summary from the Dubbo Base Hospital on 2 November. The letter of 27 December to Dr Grattan-Smith (sent at a time when litigation was not contemplated) (para [43]) supports this conclusion. 167 I am of the opinion that Dr Rahilly considered seizures as a possibility in the diagnosis of Rhiannon. He rejected it as a likely diagnosis on clinical grounds, ie based on history, his examination and observations. Was he justified in so doing? 168 Dr Rahilly's reasons for rejecting seizures as Rhiannon's likely diagnosis were: "(i) They occurred in response to her being frightened or startled. (ii) They were one off episodes and not part of a run of episodes. (iii) They were not spontaneous. (iv) She was tensing up and holding her head back but not shaking or having any other associated body movements. (v) She did not seem to lose consciousness. (vi) The episodes were very short lived and did not come in runs."

It seems that babies with developmental delay can have abnormal movements of considerable variety without them being seizures (T.724.57). Accordingly, developmental delay was thought by Dr Rahilly to provide the better diagnosis in the period 21 September - end of October. 169 Dr Rahilly's conclusion that seizures were an unlikely diagnosis during that period is supported by the defendants' other medical witnesses. In fact the only evidence to contrary effect comes from Professor Buchanan. 170 As indicated, the cross-examination of Dr Manson was marred to some extent by the ambiguous use of the word "suspicion". Nevertheless, the evidence of Dr Manson went no further than to agree that on the basis of what was put to him, seizures were a possibility to be considered (T.1887-1888). 171 The evidence of Dr Hopkins was that a child having episodes of eye rolling, for which no other cause was present, should be considered to be possibly having seizures (T.1088). Little weight can be placed on the response at T.1095.19. It needs to be read in the context of the report of 15 February 2002 to which reference was made at T.1094.50-.58. The response is at best ambiguous. It is clear that Dr Hopkins did not resile from his original opinion expressed in his reports (T.1106-1107). 172 In his report of 15 February 2002 Dr Hopkins said: "It is clear from the records of Dr Rahilly, and his communication with Dr Grattan-Smith at the New Children's Hospital (Department of Neurology) that he was concerned about the possibility of seizures, because of the tendency for her to have episodes of eye rolling, when he saw her on 21 September 1999. However, I feel that the diagnosis of a seizure disorder would have been very difficult to make at this stage. However, by the time of her admission to Dubbo Hospital and particularly from the information obtained in her hospital record in the chart referred to as "fitting/behaviour" - re episodes on 25, 26, and 27 October 1999 there are episodes recorded of eye rolling and dazed unresponsive periods, one with pupils dilated and one with a full body jerk, that should have alerted Dr Rahilly that seizures were probably, rather than possibly, occurring."

It is common ground that Dr Rahilly did not become aware of this information until 2 November. 173 Dr Ingall explained how difficult it was for a paediatrician to get a clear history from parents and that over time when increasing bits of history are provided the diagnosis can become clearer. "You are actually getting more and more bits of history as time goes past, and you start to recognise that the child is evolving on. So, the combination of those two things can accelerate everything to the critical point that Dr Rahilly then said "Look this is critical, you get to Westmead". (T.1174.43) 174 At T.1179.56 he said: "If I may clarify, my unease is partially based historically, in that if you suspect seizures then, yes an EEG may be helpful. If the modifications to the assumptions are, or on those points my unease about not doing an EEG would remain the same but it would be tempered by, well, are they seizures. It comes back to weighting in terms of developmental delay and seizures. The developmental delay would assume the larger proportion of my mind and the seizures a lesser proportion. It would mean that the EEG wouldn't be as essential immediately as sending off chromosomes and other tests looking for reasons for the developmental delay. It would just be a matter of weighting the epilepsy side of it down. …" 175 Dr Ingall's use of the phrase "if you suspect seizures" in that answer referred back to questions in cross-examination where the word "suspected" was used by the cross-examiner in an undefined way (T.1172.19, T.1177.33). In that answer in cross-examination Dr Ingall seems to be using the word "suspect" in the sense of "if you believed seizures were the likely diagnosis". Accordingly there is nothing in the evidence of Dr Ingall to support the proposition that Dr Rahilly should have identified seizures as the diagnosis of Rhiannon. 176 Dr Ingall in his report of 21 January 2002 said: "It is my opinion on carefully reading Doctors Pryde, Hardacre, Grattan-Smith and Bloomfield's notes that Rhiannon's seizures were "subtle" and "atypical". Rhiannon was admitted to Dubbo Base Hospital for three days from October 24 1999 and at no point did any of the medical or nursing staff document her eye rolling episodes as "seizures". This was despite the fact there were ten episodes from 12.30 hours on October 25 to 0800 hours October 27th, some of them up to sixty seconds in length. I note the medication prescribed was Paracetamol for "irritability", so I can only assume the eye rolling episodes were thought to be due to Rhiannon's fractious behaviours, rather than epileptic in nature. Paracetamol was given for the reason of irritability on five occasions, during her stay in Dubbo Base Hospital. Similarly Dr Grattan-Smith (on page 18) gives the opinion that the seizures were "extremely subtle" and in index 8 of volume 1, Dr Paul Bloomfield notes on November 19th and 25th and December 2nd and 13th that Rhiannon's seizures were subtle. …

The other strong impression I get from going through the notes is that Rhiannon was a very irritable and unhappy infant. Dr McClymont's note on October 24th at admission to Dubbo Base Hospital was "that she was crying all the time" and the Nursing Admission Notes were also that she "cries all day", I can only imagine that this information was given to them by Rhiannon's parents. I also understand at least in part, the admission to Dubbo Base Hospital was to give the parents some time out from Rhiannon's crying. Similarly Paracetamol was given on five occasions for "irritability" while Rhiannon was in Dubbo Base Hospital. With such underlying irritability, it is much harder to ascertain whether there is any intermittent seizure activity or not. It just makes it that much more difficult, I have found in my experience, to recognise epileptic activity whenever there are other factors such as developmental delay and irritability affecting the clinical picture." 177 Dr Wise (report 16 March 2002, PX 11 doc 24) said: "I conclude that I find myself in agreement with Dr G/S in his letter to Dr R in Jan 2000 - that "the clinical features were extremely subtle - it would have been difficult to make a clinical diagnosis of seizures with the events I observed" and this was some six weeks after the child was first seen by Dr R, in which the episodes had become more frequent. Another factor which would have made early diagnosis more difficult was the pre-existing and substantial developmental delay. If for example the child had developed normally to seven-eight months, had been sitting, handling objects, babbling, smiling and interacting and had regressed to three-four months levels between then and when seen by Dr R at eleven months the diagnosis would have been far easier to make, but at the time of onset of the seizures the child was already substantially delayed and in fact made some motor improvement in this time being able we are told to push herself around in a walker at ten months - … In a recent review of 138 patients with infantile spasms the age of onset was at a mean of 7.8 months and the interval to time of treatment varied from 5 to 810 days, mean 90 days, implying that there are difficulties with early diagnosis in a substantial number of cases. In short I do not believe the suspected diagnosis was unreasonably delayed in this case." 178 Professor Buchanan agreed that the seizures were not the typical spasms seen in infantile spasms, that there was an absence of a history of head nodding and no apparent clustering and that the unusual presentation of infantile spasms could increase the difficulty of diagnosis. He accepted that the seizures were described as "subtle" in the Children's Hospital notes and as described by the parents were "certainly not the overt physical spasms typical of infantile spasms". (T.571.11) 179 Professor Buchanan also agreed that the diagnosis of epilepsy is and remains largely a clinical one, despite advances in investigational techniques available to the clinician. (T.672.35) When it was put to him that if in doubt about the diagnosis the clinician should wait, and that it was most unusual for harm to come from waiting, he said at first "It depends on the severity of the symptomatology." He was then somewhat reluctantly compelled to acknowledge that he had expressed that opinion in precisely those terms in his own publication "Epilepsy Handbook" in 1995 (T.673.1). 180 Even looking back through the slanted prism of hindsight, I am not satisfied that Dr Rahilly should have considered seizures as the likely diagnosis for Rhiannon until he gained access to the notes of the Dubbo Base Hospital. 181 It seems to be common ground that Dr Rahilly acted prudently and appropriately in consulting Dr Grattan-Smith when he did. He consulted a specialist paediatric neurologist about a problem within that sub-speciality. In judging whether he failed to use reasonable care, the circumstance that such advice was sought and acted upon is a relevant factor to be taken into account. 182 The principal allegation against Dr Rahilly is that he should have arranged for an EEG sooner and specifically at about the time of his telephone conversation with Dr Grattan-Smith on 30 September. To support that proposition Rhiannon's case relied upon establishing a number of propositions. 183 It was submitted that Dr Rahilly had telephoned Dr Grattan-Smith because he suspected seizures in the sense that he believed seizures were the likely diagnosis. I have indicated why I do not accept that submission. 184 It was submitted that on 30 September Dr Rahilly had not passed on to Dr Grattan-Smith all relevant information. He did not tell Dr Grattan-Smith what he had been told by the parents, what he observed himself as to Rhiannon's episodes and the fact that Rhiannon threw her head back when her eyes rolled back. Had Dr Grattan-Smith been provided with full information about Rhiannon, his advice concerning an EEG would have been different. 185 I have indicated why the description "throwing her head back" is misleading (paras [157] - [158]). Quite apart from Dr Rahilly denying the submission in cross-examination, it ignores the fact that the telephone conversation was followed within days by a copy of the letter of 4 October to Dr Gibson (paras [28] and [41]) which set out all relevant information. To the extent that any issue was omitted in the telephone conversation, it was picked up in the letter forwarded some days later. Dr Grattan-Smith said that the letter did not cause him to change his opinion. I am not persuaded that Dr Rahilly failed to pass on any relevant information to Dr Grattan-Smith. 186 It was further submitted that when Dr Rahilly spoke to Dr Grattan-Smith on 30 September he expected Dr Grattan-Smith to recommend an EEG and was surprised when he did not. (T.727.25) By not raising the fact of his surprise, and by uncritically accepting the advice of Dr Grattan-Smith, it was submitted that Dr Rahilly "bowed" to the opinion of the paediatric neurologist to the detriment of his patient when he should have stood his ground. Implicit in that submission is the assumption that had Dr Rahilly stood his ground in the way suggested, an EEG would have taken place earlier. 187 What the submission fails to have adequate regard to, is the specific piece of advice which caused some surprise to Dr Rahilly. The evidence as to the conversation is at paras [40] - [44]. What caused surprise to Dr Rahilly was the comment that an EEG would not be useful in a child of Rhiannon's age. Dr Grattan-Smith denied that he made such a comment. Whether Dr Grattan-Smith did say something along those lines, or whether Dr Rahilly misheard the words "an EEG will not be useful at this stage" as "an EEG will not be useful at this age" will never be known. 188 What is clear from the evidence of Dr Grattan-Smith and Dr Rahilly is that the basis for Dr Grattan-Smith's advice for Rhiannon not to have an EEG at that point in time was Rhiannon's history and the clinical assessment of Dr Rahilly that he did not think Rhiannon's episodes were seizures. The comment concerning an EEG being useful at that age or stage was superfluous to that fundamental consideration. 189 It is also not without significance that arranging an EEG for an infant such as Rhiannon was a complicated matter, which involved some risk to the child in that she would have to be subjected to a general anaesthetic. It would have involved considerable dislocation to the family because Rhiannon would have to be transported to Sydney for the procedure to take place (T.728.34, T.1176.44-1177.22). 190 Dr Ingall, the only other paediatrician to give evidence, agreed with Dr Rahilly that it was customary for paediatricians to defer to the opinion of a paediatric neurologist. "Q. - If you assume when told of all those features - the history and the like, and you assume that the paediatrician was told by the paediatric neurologist that an EEG would not be useful at this age, and the paediatrician was surprised by that remark, what would you then expect the paediatrician to say to the paediatric neurologist? A. Puts the paediatrician in a difficult situation because they are asking someone who is dealing with, if you like, epilepsy and developmental delay far more frequently than the general rural paediatrician, we have in our practice, but its just part of your practice, so when we get the opinion from a paediatric neurologist it may surprise us, but we can't keep up with the literature. We know we can't keep up with the literature in that area as well as they can. I would be of the opinion that yes I would be surprised but I would weight that very heavily, the paediatric neurologist's opinion, in how I managed the case, otherwise I wouldn't ring them. Q. Would you bow to the view of the paediatric neurologist? A. With some unease I think, yes." (T.1132.52-1174.14) 191 As indicated, on a proper reading of the conversation between Dr Grattan-Smith and Dr Rahilly it was not a question of bowing to the opinion of the paediatric neurologist since that opinion and recommendation was based on Dr Rahilly's own clinical assessment of the episodes. That was not the way in which the matter was put to Dr Ingall. Nevertheless, Dr Ingall agreed that he would defer to the opinion of a paediatric neurologist on such an issue. See also the evidence of Professor Buchanan (T.581.19-.38). 192 The question then becomes was it a breach of duty on the part of Dr Rahilly not to clarify that part of the advice of Dr Grattan-Smith which he found "surprising", ie that an EEG would not be useful at that age. In my opinion Dr Rahilly's failure to clarify that comment does not involve a breach of duty on his part. It did not form the basis for Dr Grattan-Smith's advice that Rhiannon did not need to have an EEG at that point in time. Any clarification by Dr Rahilly of that comment would have related to a peripheral issue and not the basis for Dr Grattan-Smith's advice. 193 There is also a causation question raised by the submission put on behalf of Rhiannon on this issue. Implicit in the submission is that had Dr Rahilly sought to clarify that part of the advice of Dr Grattan-Smith to the effect that "an EEG would not be useful at that age" this would have revealed the misunderstanding and an urgent EEG would have been arranged. 194 That assumption is not made out. There is nothing in the evidence of Dr Grattan-Smith to indicate that had Dr Rahilly clarified the comment, Dr Grattan-Smith's advice would have been any different. On the contrary he did not at any time resile from the proposition that his advice concerning the need for an EEG was based on what he had been told by Dr Rahilly, both orally and in the letter, and on Dr Rahilly's clinical assessment that the episodes were not seizures. That was the effect of his evidence at trial. 195 I am of the opinion that even if Dr Rahilly had sought to clarify the remark concerning whether or not an EEG was useful at that age, it would not have altered the advice which Dr Grattan-Smith gave. Accordingly if there was a breach of duty by Dr Rahilly in that regard it did not cause damage. 196 That being so it is not necessary to examine the analogy sought to be drawn in the submissions, between the decision in Wakim v McNally (2002) 121 FCR 162 and the relationship between a paediatrician and a paediatric neurologist. 197 I am not satisfied that Dr Rahilly breached the duty which he owed to Rhiannon in his diagnosis and treatment of her between 21 September and 2 November 1999.

Liability of the Children's Hospital 198 The following particulars of negligence were pleaded against the Hospital in the further Amended Statement of Claim.

(a) Persistence with medical treatment for infantile spasms that was inappropriate.

(b) Failure to use Vigabatrin to treat Rhiannon's seizure disorder.

(c) Failure to advise the second and/or third plaintiff adequately or at all as to the potential risks and benefits of treating Rhiannon's seizure disorder with Vigabatrin.

(d) Failure to seek the consent of the second and/or third plaintiff to the treatment of Rhiannon's seizure disorder with Vigabatrin.

(e) Failure to trial Vigabatrin in a timely manner when it became apparent that Rhiannon's seizure disorder was not responding to the treatment administered.

Particulars (c), (d) and (e) had not been pleaded against the Hospital until the further Amended Statement of Claim was filed on the first day of trial. As a condition of gaining the amendment, Rhiannon's counsel undertook not to adduce any additional evidence beyond that already served. 199 Although the proceedings were brought against the Hospital, in reality they related to the adequacy or otherwise of the treatment by Dr Grattan-Smith of Rhiannon while she was at the Children's Hospital between 3 November and 17 December 1999. The allegations against Dr Grattan-Smith are in summary that he departed from the appropriate standard of care in his treatment of Rhiannon in failing to use or offer Vigabatrin at some time before she was discharged and that he ought to have discussed the use of Vigabatrin with Rhiannon's parents during that period. 200 It was submitted that because Dr Grattan-Smith had been so closely involved in the preparation of the case, ie he had prepared a statement of assumptions for use by the defendants' experts and had engaged in substantial correspondence with the defendants' solicitors, his evidence ought be largely ignored in that he was not independent and could not therefore give expert evidence. 201 It goes without saying that any professional who believes his or her conduct has been wrongfully impugned is going to defend that conduct and in so doing is unlikely to be entirely objective. Dr Rahilly is in that category as is Dr Grattan-Smith. Nevertheless each of them is a respected specialist in his field and in the course of explaining the management of the case it was necessary for each of them to give opinion evidence. Their interest in the ultimate outcome of the case is something which has to be kept in mind by a judge when assessing their evidence. This I have endeavoured to do. 202 In relation to objectivity, it did seem to me that Professor Buchanan who continues to be Rhiannon's treating specialist was not truly independent. This is despite the fact that his management of the case was not directly under scrutiny. Like Dr Grattan-Smith, Professor Buchanan appears to have gone to considerable lengths to assist the plaintiffs' solicitors in the preparation of the case. Such assistance involved extensive correspondence and the preparation of a number of preliminary reports dealing with propositions advanced by the defendants' experts. Just like Dr Grattan-Smith, on occasions his answers under cross-examination disclosed more of an advocate's enthusiasm than an independent assessment. 203 The first question is whether the Hospital departed from the appropriate standard of care in not using Vigabatrin in its treatment of Rhiannon between 3 November and 17 December 1999. It was submitted, on behalf of Rhiannon, that Vigabatrin should have been the first treatment used or if not, should have been used by mid November when it was clear that the other treatments were not working. In determining this first question the Court has to make a decision between competing medical opinion. This first question involves not competing medical opinion as to whether a warning should have been given, but competing medical opinion as to the nature of treatment, which should have been provided. 204 This is the sort of question which Gleeson CJ had in mind when he said: "As the above, which was quoted with approval in Rogers v Whitaker , makes clear, the relevance of professional practice and opinion was not denied; what was denied was its conclusiveness. In many cases, professional practice and opinion will be the primary and in some cases it may be the only, basis upon which a court may reasonably act …" ( Rosenberg v Percival , para 7).

On this first question it is difficult to see any basis other than professional practice and opinion, which should inform my decision. 205 In order to understand the submission one needs to know something about the treatments and their history. Whilst there was no consensus on these matters I have chosen to set out the summary of Dr Antony in her report of 8 January 2002 since she was not cross-examined on it and it seems to be a reasonable assessment of the prevailing opinion as of November 1999. "The proper first line of treatment for infantile spasms has always been controversial. Until Vigabatrin became available it was commonly thought by most paediatric neurologists that either ACTH injections or oral Prednisone were the treatments of choice, with the former being slightly favoured. Control trials were always very difficult to interpret because the results were not very clear-cut. There have been paediatric neurologists who have favoured Nitrazepam, especially in children who have developmental problems before the onset of the infantile spasms. Other choices are Valproate and the Japanese, in particular, have tried very high doses of vitamin B6 with some report of success. When Vigabatrin became available, I believe in the late 1980's/early 1990's, it was discovered that this anti-convulsant was successful in treating infantile spasms, especially in cases where the underlying cause was a condition called "Tuberous Scelerosis". The reason for the tuberous scelerosis being particularly benefited by the Vigabatrin is unexplained. Since that time there has been controversy as to whether ACTH remains the first treatment of choice, which many neurologists still subscribe to, or whether Vigabatrin should be used as a first line drug, mainly because it is given orally as opposed to intra-muscular ACTH injections. Some neurologists still continue with the ACTH or Prednisone therapy, and others would use Vigabatrin as a first line and then switch to ACTH if the Vigabatrin is not beneficial. Unfortunately a spanner was thrown into the works in 1998 when it was discovered that the Vigabatrin could cause visual field constriction, which may or may not be irreversible. There was anxiety about how this might affect the young infant with a developing nervous system and there was more controversy and debate about the use of the Vigabatrin as a first line therapy. The anxiety was even made worse by the fact that the doses needed to treat infantile spasms, per body weight, were about two to four times as high as what would be used in older children or adults with other seizure disorders. … It should also be remembered that Vigabatrin is not available in the United States of America and studies on its use are mainly in Europe, where I believe it is probably popular as a first line treatment. As a general statement, there has NEVER been a consensus on what is the best treatment for infantile spasms. Prior to Vigabatrin being available the majority of the paediatric neurologists would agree that either intra-muscular ACTH therapy or oral Prednisone were probably the treatment of choice. At that stage there was debate as to whether a high or low dose of ACTH was more effective and publications revolved around the use of different doses of ACTH, as well as whether there was any advantage to intra-muscular ACTH, which could have significant side effects, as opposed to oral Prednisone. As stated earlier, most of the studies gave a slight edge to the use of ACTH, but the dosage issue has never been fully resolved. Vigabatrin certainly did provide a very good alternative and until 1998 when the concerns about the visual field deficits were brought to light, it was probably, at least in Australia where I have more experience, more readily used as a first line treatment. However, there would never have been a time when one would be critical of a paediatric neurology specialist choosing to start ACTH or Prednisone as opposed to Vigabatrin. As stated before, there are also other schools of thought that Nitrazepam, Volproate or a high dosage of vitamin B6 can be useful and there are studies, and certainly cases, to support their use. It should also be recognised that individual persons, for reasons that have always been unclear, will respond favourably to one medication and not the other. For example, ACTH may provide quick and satisfactory control in some patients where Vigabatrin has failed and vice versa." 206 Although Dr Antony specified two first line treatments, it seems to have been generally agreed that there were in fact three first line treatments - ACTH/Prednisone, Nitrazepam and Vigabatrin. What was controversial was whether Vigabatrin had remained a first line treatment option after the "tunnel vision" side effect had been discovered. 207 The course of treatment provided by the Hospital is at paras [74] - [83]. To support the reasonableness of that regime, the Hospital relied not only upon its own experts but upon the second opinion of Professor Buchanan (para [85]) and his evidence in relation to it: "Q. My question, please, Professor. Being consulted for a second opinion, did you regard yourself as duty bound to advise Rhiannon's parents whether or not the current management was appropriate? A. Yes. Q. Similarly, to advise the treating doctors, Dr Grattan-Smith in this case, whether the management was in your opinion appropriate? A. Yes. Q. And what you conveyed to them both was that things should be left alone, at least for the time being, correct? A. On that occasion. HIS HONOUR: I'm sorry I didn't quite get that. A. On that occasion. BRERETON Q: Anyone reading your letter or hearing advice that things should be left alone would be of the view that your opinion was that the current management was appropriate wouldn't they? A. Yes. Q. And that was what your letter was intended to convey wasn't it? A. Yes. That is what it did convey. Q. Well that is what you intended it to convey wasn't it? A. Yes I mean it was - it's a difficult situation when you're asked to give a second opinion at the behest of the parent in that setting. Q. Well -? A. It just makes it more difficult. But I'm not arguing with what you are saying. HIS HONOUR: He's agreed it did convey that. BRERETON Q: If you had thought that the current management wasn't appropriate, you would have said so, wouldn't you? A. Yes. Q. And the position was that, as at 16 December 1999, you considered that the management regime implemented at the Children's Hospital was a proper and appropriate one didn't you? A. Proper and appropriate in as much that Rhiannon was receiving appropriate and correct medications, but nevertheless, in terms of her seizures she remained unresponsive. Q. Yes, but the treatment she was getting for that seizure disorder, although it wasn't getting a good response, it was nonetheless a proper and appropriate treatment? A. I'm not arguing about that. Q. You don't come here to say that the treatment she had received at the Children's Hospital fell below the standard expected of reasonably prudent hospitals and medical practitioners do you? A. No." (T.442-443) 208 Those answers were sought to be qualified in re-examination: "Q. The answer you gave to one of the questions Mr Brereton just read out is the medications were proper and appropriate in as much as Rhiannon was receiving appropriate and correct medication but nevertheless in terms of her seizures she remained unresponsive. What did you mean by the word 'appropriate' in that context? A. I meant the medications she was receiving are standard treatments for infantile spasms. However on the basis - OBJECTION: However, as the seizures were not responding to the treatment being provided then other treatments should be looked at or should have been looked at including - OBJECTION: A. As I already mentioned if there was no response to treatment, as there did not appear to be then other medication should have been looked at. Vigabatrin by that time was high on the list". (T.681.20)

It is difficult to see how that response in re-examination significantly erodes the proposition which he previously acceded to, ie that his letter to Dr Grattan-Smith of 21 December 1999 endorsed the treatment which Rhiannon had received up to that time. 209 Not surprisingly, after the side effects were discovered the manufacturers of Vigabatrin provided guidelines for its use in 1998: "Vigabatrin is an anti-epilepsy drug indicated for the treatment of epilepsy which is not satisfactorily controlled by other drugs."

Professor Buchanan agreed that this ran contrary to the proposition that Vigabatrin continued to be a first line treatment after the side effect was discovered. "Q. A doctor would be entitled to think reading that, that the manufacturers wouldn't support its use as a first line of treatment? A. I take your point. Q. A doctor treating epilepsy in a child or in an adult would be entitled to think that he or she should prudently try other reputable treatments before resorting to Vigabatrin? A. I accept that in the context in the way in which you have put it." (T.427.39-428.13) 210 Perhaps the most telling endorsement by Professor Buchanan of the Hospital's treatment of Rhiannon was the fact that when he took over her treatment in January 2000, he continued the same regime and Vigabatrin was not introduced until March 10. "Q. … Did you make clear to Rhiannon's parents that the risks they were taking if they accepted your recommendation to leave things as they were involved, in your mind at least, further brain damage? A. I have expressed, to the best of my recollection I expressed to them the view that the medications she was on may or may not work and indeed the Vigabatrin may or may not work when she was introduced but that what she was on should be given a fair go before the Vigabatrin was introduced at that time. That does not resile from the general thrust that I have made that Vigabatrin is one of the drugs of first choice and perhaps should have been introduced earlier." (T.489.29)

In later evidence Professor Buchanan agreed that to give ACTH a fair go could take up to ten weeks, although one would be hoping to get a reasonable response within two to four weeks. (T.490.41) 211 I have already set out the evidence of Dr Antony as to the legitimacy of a paediatric neurologist commencing treatment with ACTH or Prednisone as opposed to Vigabatrin and continuing that treatment. The evidence of Dr Hopkins was even more definite. "I believe that Dr Grattan-Smith's program of treatment of her epilepsy was appropriate, even though it was not until some time after the anti-epilepsy medication Vigabatrin was introduced that control of the seizures was obtained, and some improvement in developmental progress occurred. Although Vigabatrin is used by some epileptologists as a first line treatment for infantile spasms, particularly when they are due to a condition called tuberous sclerosis, which Rhiannon does not have, most paediatric neurologists use it as a second line of treatment where there is a failure to respond to medications such as Benzodiazepines, or ACTH, which were given to Rhiannon as her first line of treatment." (Report 28 September 2001, page 3) 212 Dr Hopkins thought that ten weeks was an appropriate time within which to trial medication such as ACTH Benzodiazepines and Valproate. In relation to his own practice Dr Hopkins gave evidence that after the side effects were discovered he became much more wary of using Vigabatrin and only used it as a first line treatment for patients who had the condition of tuberous sclerosis. In relation to the suggestion that Vigabatrin could have been trialled for a short period he said: "Yes. But there are some patients and I believe Rhiannon Richards was one of them who do not have any very convincing response soon after starting within the first couple of weeks but gradually improve over a longer time. So, in fairness, it has been my practice not, in those patients where I have used Vigabatrin, not to cease it only after one, two or three weeks but usually to continue it for one or two months." (T.1097.19) 213 The evidence of Dr Burke was that there was no generally accepted treatment or program for children with infantile epileptic disorders. He continued to be concerned about the possible visual side effects of Vigabatrin. It was reasonable for Vigabatrin not to have been commenced during Rhiannon's hospital admission, although many child neurologists would have had a different opinion. It was his opinion that a far greater majority of children responded to ACTH than to Vigabatrin and that ACTH "is still the standard ballpark, the most effective treatment of infantile spasms". 214 Dr Manson gave evidence that even before the visual defects were discovered in 1997, Vigabatrin had not been shown to be more efficacious than ACTH. He said: "I strongly disagree with the argument that Vigabatrin is safe to use as a first choice in infantile spasms."

He considered the course of treatment in the Hospital was "quite appropriate". By reference to the literature he was of the opinion that the major treatments used in the Hospital - Nitrazepam and ACTH were of equal effectiveness to Vigabatrin in controlling spasms in infants. He referred to the 1998 manufacturers' guidelines produced by an Australian panel of experts, which suggested that Vigabatrin should only be prescribed if all other standard treatments had failed. (Report 6 February 2003, page 11.) He thought that when faced with a choice of treatment, bearing in mind that ACTH, Vigabatrin and Nitrazepam were of equal efficacy, it was difficult to favour Vigabatrin because it may cause irreversible, permanent visual damage. 215 It was the opinion of Dr Wise that the investigations and treatment of Rhiannon by the Hospital was timely and appropriate. Until the emergence of Vigabatrin it was usual to treat infant spasms with Nitrazepam and steroids such as ACTH. Once the reports of irreversible visual field damage associated with Vigabatrin began to emerge, paediatric neurologists reverted to the use of the earlier treatments as their first choice, although many would give Vigabatrin a try if steroids fail. He referred to a recent British trial on a group of one hundred and fifty children which had shown that steroids - ACTH or Prednisolone - were more effective than Vigabatrin on the seizures of the children presenting with infantile spasms. (T.1070.49) 216 Leaving aside Dr Grattan-Smith's reasons for providing his regime of treatment, all expert evidence including that of Professor Buchanan supported the proposition that the Hospital did not depart from appropriate standards in providing to Rhiannon the treatment, which it did. That treatment had to be given a reasonable trial before changing to an alternative treatment. The conduct of Professor Buchanan in following that approach before changing to Vigabatrin supports that conclusion. Although Professor Buchanan suggested a shorter period of two-four weeks there was no real challenge to Dr Hopkins' assessment that a reasonable trial of medication such as Prednisolone, ACTH Benzodiazepam and Epilim would usually take ten weeks. It should be noted that Rhiannon had been on ACTH for about three weeks at the time of her discharge from Hospital. 217 Rhiannon's case on this first question rises no higher than a preference by Professor Buchanan for the use of Vigabatrin as a first line treatment of infantile epileptic conditions. The impetus for the submission is hindsight in that Rhiannon appears to have responded positively to Vigabatrin when it was administered to her from 10 March 2000 onwards. What has not been established is that the Hospital failed to act reasonably in providing Rhiannon with a regime of medication which the evidence demonstrated accorded with professional practice and opinion. 218 I am not persuaded that the Hospital departed from the appropriate standard of care in treating Rhiannon with the regime of medication which it did during her admission between 3 November and 17 December 1999. 219 Considerable argument was directed to whether or not Rhiannon suffered from infantile spasms as distinct from other forms of infantile epilepsy. The rationale behind that dispute seemed to be that Vigabatrin historically had more success in the treatment of infantile spasms per se than with other forms of infantile seizures. All experts in their assessment of the treatment regime applied by the Hospital, however, had little or no regard to that distinction. The evidence was to the effect that the regime of treatment provided by the Hospital was appropriate regardless of the specific form of seizure from which Rhiannon suffered. 220 I do not propose to resolve the dispute as to whether or not Rhiannon suffered from infantile spasms. There were legitimate arguments to support each approach. Certainly there was sufficient material to support Dr Grattan-Smith's conclusion that Rhiannon was not suffering from infantile spasms but from some other form of infantile seizure, and to the extent that this influenced his choice of treatment for her, it was a conclusion legitimately open to him. 221 The features of Rhiannon's seizures which seem to be atypical from the point of view of infantile spasms were that they did not involve the classic "Salaam" movement and most particularly they did not have the "clusters" or "runs of seizures" which seem to be an essential characteristic of the diagnosis. I reject the suggestion that Dr Grattan-Smith "changed the diagnosis from infantile spasms" to assist his case. There seems to be ample evidence that the original diagnosis of infantile spasms was a provisional diagnosis which was subsequently changed as more information came to hand. 222 I should also say something about the use which I made of the large number of articles from medical journals which were included in the evidence. I did not use the articles as being themselves evidence of the matters to which they referred, eg the various epidemiological studies. I did, however, use those articles where referred to by the experts, as disclosing the basis for their expert opinion. Where articles were referred to by the medical experts, my reading of the article confirmed that the references were in most cases accurate and appropriate. 223 The second question is even if the treatment provided by the hospital was appropriate did the hospital still depart from appropriate standards by not discussing the use of Vigabatrin with Rhiannon's parents. 224 Some guidance on this issue is provided by Rogers v Whitaker: "There is a fundamental difference between, on the one hand, diagnosis and treatment and, on the other hand, the provision of advice or information to the patient. In diagnosis and treatment, the patient's contribution is limited to the narration of symptoms and relevant history; the medical practitioner provides diagnosis and treatment according to his or her level of skill." (p 489)

The submission runs somewhat contrary to that guidance in that if it is correct, there is no fundamental difference between diagnosis and treatment on the one hand, and the provision of advice or information on the other. Implicit in the submission is that the provision of advice should take place before a decision as to treatment is made and the patient should make the decision as to what treatment should be provided. 225 If the submission is correct, its implications are far-reaching. No longer would a doctor be required before embarking on treatment to warn a patient of its risks, but at an earlier point in time the doctor would be required to discuss with the patient the various treatment options, raising in relation to each its advantages and disadvantages and then allowing the patient to choose his or her particular treatment option. That, it seems to me, would involve a substantial abrogation by the doctor concerned of his expertise as a doctor and to blur the clear distinction identified by the High Court in Rogers v Whitaker between diagnosis and treatment on the one hand and the provision of information. 226 To the extent that there was any expert evidence on this issue it was as follows: (Dr Hopkins) "Q. And you would leave it to the parents in the case of an infant patient to make the assessment with that information, correct? A. Yes, I would try very hard not to make them feel responsible for the decision making, but I would want to ascertain that I was not doing something which they felt I should not do. It's a very difficult area that you touched on here in terms of putting the onus of medical treatment decisions onto the parents of children, and I would tend to, I would try to give them guidance and I sometimes get over this by saying, if your child was my child I think I would probably do this, if they are still uncertain what avenue they would like to pursue, but it's a very difficult area you have brought up in really asking parents to make the treatment decision, whereas it is a very difficult decision." (T.1098.33) "Q. Would it be fair to say that in those circumstances you provide the parents with sufficient information about the condition, that is the infantile spasms, the investigation options, the treatment options, benefits, and possible adverse effects or complications, and the likely result if treatment is not undertaken in order that they can make their own decision about undergoing the treatment? A. That is correct in terms of general principles. It is a very difficult decision when you are talking about a drug which is relatively new and which the ramifications are not fully known. It is very difficult when you are dealing with medications that can affect the brain because the developing brain is more sensitive to the effects of drugs than older individuals and the side effects of the Vigabatrin were based on studies in older children and adults mainly adults. It is a very difficult question to answer simply, I'm afraid. And I have seen very different answers come according to the way these questions are put, and the doctor really can put that information forward in such a way that he gets the answer he wants. It is very difficult and requires great care to put all the information in front of the parents, and when the information one would like to be able to present is simply not available, such as, even today as far as I know no-one knows about how common or otherwise effects on the retina from Vigabatrin are in babies as opposed to older children. Nobody knows whether it has the same effect on children who have slow development compared with babies who have normal development. There are so many still unknown questions that it is very difficult to influence parents in a very logical and factual way about this question you have posed." (T.1099.30) (Dr Manson) "Q. Doctor at page 12.1 of your report in part of a discussion you say "Therefore the physician is faced with a choice of treatment in infantile spasm". It's well regarded medical practice, is it not, to offer to the patient information as to various treatment options if options are available? A. Well that is not actually my practice to mention all the available treatments initially, at the initial consultation. It is my practice to decide which I think would be the most suitable medication for that particular patient and then discuss all the risks and benefits and so on relating to that particular medication with the parents. … Q. If there are a number of available treatments you would consider it appropriate, would you not, to discuss the respective risks and benefits of those treatments with your patient to enable your patient to make an informed decision concerning the giving of consent to the undergoing of the treatment? A. I think that's impracticable. There are about five medications that have almost equal benefit in this condition in terms of relieving the spasms and to discuss the risks and benefits of all of them which are quite substantial in some cases can only confuse things. I usually recommend a medication but put the argument for and against and if they have genuine doubt or wish to consider an alternative then I would consider it and suggest the next one I would prefer. HIS HONOUR: Q: We are talking here not so much about the patient but the parents, I think we all understand that. A. Of course. Q. What's the ethical position if the parents take a particular view but the medical practitioner takes a different view as to the medication? A. I think most times we would then move on to an alternative medication and discuss that in some detail particularly when there are several options here which all have their different risks and different benefits. Q. I mean I suppose almost all parents take the advice? A. In the vast majority of cases parents will take the advice given." (T.1196.57-1197.40) 227 To support the submission reference was made to KL v Farnsworth [2002] NSWSC 382. The passages relied upon were: "133. What follows from the conclusions I have stated above? I am satisfied that, in a number of material respects, KL was not given complete information such as to enable her to make an informed choice. I am satisfied that Dr Farnsworth was so convinced himself that the optimum procedure for KL was urinary undiversion that he glossed over the disadvantages of that procedure and any benefits associated with ileal conduit. 134. I have not the slightest doubt that Dr Farnsworth acted with the best intentions, and in what he perceived as KL 's best interests. But the overriding theme of cases such as Chappell v Hart and Rogers v Whitaker is patient autonomy: patients are in control of their own lives, and even if they are not best placed, objectively, to decide on whether or not to undergo a particular form of surgery or other medical treatment, they nevertheless have the right to be placed in a position which enables them to make an informed decision. Such a decision is based only in part on the medical issues on which, plainly, the medical practitioner has a significant advantage: Another important aspect of the decision is the impact the particular surgery or treatment will have upon the particular patient's life: This, in turn, depends upon an intimate knowledge of the patient's lifestyle, what is important to him or her, the strengths and weaknesses of the patient in coping with particular kinds of diversity. This the patient is best placed to know. He or she is to be put, so far as possible, in possession of sufficient information about the proposed procedure to make an informed decision having regard to the likely impact on his or her life. 135. In many, if not most, cases that decision will be simply a choice of undergoing, or not undergoing, surgery, or accepting or not accepting a particular form of treatment. That is not the present case, but the principles are no different. I accept that the task the law imposed on Dr Farnsworth was not an easy one: It was to provide to KL fair and accurate objective information about the relative merits and demerits of the two forms of surgery. 136. As I have indicated above, I have concluded that Dr Farnsworth allowed his own very strong preference for urinary undiversion to stand in the way of his giving a fair assessment of the two procedures to KL . 137. I am conscious that Dr Farnsworth was at some pains to explain to KL technically what he proposed to do. What he did not do was to stand the two operations side by side and give KL a clear picture of the two procedures and, more importantly, what each might in practical and real terms mean for KL . …" 228 On one view of the facts in that case it was not necessary for her Honour to go as far as she did in determining the issue of breach of duty. What was found against Dr Farnsworth was that he glossed over the disadvantages of the procedure which he favoured. That would seem to come fairly and squarely within the principle explained in Rogers v Whittaker without the need to go the extra step and require the doctor to stand the two alternative procedures side by side and spell out for the patient the respective advantages and disadvantages. To the extent that her Honour went that extra step, the line of reasoning was probably unnecessary for the decision and could be properly regarded as obiter. 229 Another way of approaching her Honour's decision is that it was not really possible for Dr Farnsworth to explain the advantages and disadvantages of the procedure which he favoured, without making specific reference to the other available procedure. Looked at in that way what her Honour did was directly in accord with Rogers v Whitaker and no extension of the law in this area was involved. 230 The Court of Appeal in Eagle v Prosser [1999] NSWCA 166 seems to endorse the proposition that the decision as to treatment is that of the doctor provided that there is a legitimate and recognised school of thought in medical circles which supported that treatment. Eagle v Prosser recognises that different doctors of different schools of thought will have different attitudes to particular treatment options. So long as those attitudes are not inconsistent with a reasonable standard of care, it is not negligent to adopt or propound or offer one to the exclusion of the other. 231 I am also mindful of what was said by Santow JA in Rufo v Hosking [2004] NSWCA 391, paras [27] - [28]: "27. Suppose, therefore, in the above example there is a less than fifty percent chance of having the leg saved, though the chance is still significant. Suppose the treatment to save the leg involves potentially countervailing risks, because the patient is elderly and frail. It may be, for example, that the leg is close to gangrenous. In weighing up those risks, no more than reasonable care and skill is called for, but the doctor still needs to direct his or her mind to that task. So too here. In the present case, this issue finds its counterpart in the difficult decision whether and when to introduce the steroid sparer Imuran. Its benefit lay in reducing the risk of bone fracture associated with a heavy dosage of corticosteroid in the form of either Prednisolone or Dexamethasone. Yet Imuran had its own potential risks for kidney failure. The trial judge adjudicated upon the competing considerations, concluding that there was nonetheless a breach of duty of care in failing to introduce the Imuran on or about 10 June 1992 as a steroid sparer. 28. I agree that there is no basis for disturbing that finding on appeal. But that dilemma of competing risks concerning Imuran does emphasise the importance of not considering breach of duty of care in isolation from the chance in question. If a particular treatment offers a small, but still appreciable, chance of a beneficial outcome, it may nonetheless not be negligent to withhold it, where there are countervailing risks of sufficient magnitude from its introduction. That said, one would still expect the doctor in the exercise of reasonable skill and care to explain the treatment options with their attendant competing risks. Here it appears that the doctor did not give such advice to the child or her parents, so far as either of the breaches were concerned." 232 These paragraphs were relied upon as providing endorsement for the submission. I do not so read them. What Santow JA said has to be looked at against the facts of that case. Treatment of the lupus condition with steroids was the treatment decided upon for the plaintiff. Part of the information required to be given by the doctor regarding that treatment included information about the possible need to use a steroid blocker such as Imuran with its accompanying risks. There is nothing novel in that approach. It is the approach mandated by Rogers v Whitaker. 233 In any event it seems to me that the factual background to KL v Farnsworth and Rufo v Hosking was quite different to that confronting the Hospital. The condition from which Rhiannon was suffering was not well understood and there were at least three, and perhaps five, well-recognised treatments for it. The treatments were not necessarily alternatives but could be used in combination. It was not understood why infants responded to some treatments and not to others. Each treatment had its own set of advantages and disadvantages. Even the mechanism by which these treatments brought about an improvement in symptoms was not known. There were no clear-cut alternative treatments to choose between. 234 In such circumstances it seems to me that a doctor is not only entitled but bound to recommend to patients (in this case the parents) that treatment which the doctor considers most appropriate in the circumstances. It is not a question of that choice involving the personal preference of the doctor but rather the doctor performing the fundamental duty for which he or she has been retained, ie to diagnose and treat. Once the doctor has recommended a treatment then it is incumbent upon him or her to explain fully to the patient the risks involved in that treatment. 235 The submission is put in such broad terms as to make its implementation unworkable as a matter of practicality. In essence it is submitted that Vigabatrin should have been discussed because it was a "legitimate" treatment that "could have worked". It would impose an impossible burden on the medical profession if a doctor was bound to offer a patient every "legitimate" treatment option that "could work" and discuss the advantages and disadvantages of each option with the patient and then allow the patient to choose his or her option. 236 On the facts of this case, the Hospital would have been obliged before deciding upon any treatment for Rhiannon, to have discussed all of the medications which were legitimate treatment options which could have worked (Dr Manson says at least five) and then request the parents to choose the treatment option which they preferred. Such an approach is unrealistic, involves enormous practical difficulties and unfairly imposes on patients/parents a decision which they are unqualified to make. It is quite different to the situation where a certain form of treatment has been recommended, but before undergoing the treatment the patient has the advantages and disadvantages of the treatment fully explained. Finally, the submission not only is not authorised by Rogers v Whitaker but runs contrary to that decision. An obligation to warn of a "material" risk inherent in a proposed treatment is a significantly different obligation to one requiring the provision of full information concerning a number of treatment options preparatory to the patient choosing his or her treatment. 237 In my opinion there was no obligation on the part of the Hospital to explain the various treatment options to Rhiannon's parents, or either of them, including the option of being treated with Vigabatrin so as to enable them to choose which treatment option they preferred.

Causation 238 The causation questions have been raised primarily by the defendants. In relation to the claim against Dr Rahilly, I have already dealt with one aspect of causation (paras [193] - [195]). The other causation question is whether an earlier EEG and therefore an earlier diagnosis of Rhiannon's condition, would have made any difference to her outcome. 239 I have found that by May 1999 when the pink jumpsuit video was taken, Rhiannon was developmentally delayed. Given that which was found when an EEG was carried out on 3 November, and given the opinions of Dr Hopkins (T.1090), Dr Antony (T.1138) and Dr Burke (T.1169) I am satisfied that had an EEG been carried out within seven days of the phone call between Dr Rahilly and Dr Grattan-Smith of 30 September, it would have been abnormal. I have used a timeframe of seven days because if an EEG had been recommended by Dr Grattan-Smith, it would not have been on an urgent basis so that the transportation and admission of Rhiannon to the Children's Hospital would not have taken place as quickly as it did after 2 November. If that finding is correct, the delay in treatment and diagnosis would have been approximately three and a half weeks. 240 As indicated (paras [105] - [106]) the question of whether Rhiannon was developmentally delayed is important in relation to causation. It is relevant to whether Rhiannon would have been better off in terms of outcome with earlier treatment or whether she was always going to be as disabled as she is now, regardless of when treatment of her epilepsy began. This was accepted by both sides. 241 The written submissions on behalf of Rhiannon were: "The Court should not be influenced by the sheer number of paediatric neurology experts the defendants engaged to support their case. There was no need to call five such experts. Essentially their reports came to the same conclusions for the same reasons. Their evidence in cross-examination was to similar effect. The opinion of each of them was that earlier diagnosis and treatment probably would not have made any difference to the long-term outcome. The reason that all of the defence experts came to the same conclusion was this: If, as they were asked to assume, Rhiannon had been severely developmentally delayed from birth, then she was destined to have a bad outcome even with earlier diagnosis and earlier treatment and earlier cessation of her seizures." (Submissions pp 88.9-89.2) 242 On my reading of the expert opinion, to which the submission refers, it was not necessary for the defendants to establish developmental delay from birth but that Rhiannon was significantly developmentally delayed before the onset of seizures. I have concluded that Rhiannon was significantly developmentally delayed and that such delay was already present by the time the video was taken in May 1999 (para [142]). 243 The effect of the evidence of the defendants' experts was that because Rhiannon had pre-existing developmental delay and her seizures were of the mixed kind, this put her into the worst category for a favourable prognosis - symptomatic rather than cryptogenic. 244 The opinion of Dr Hopkins is probably best expressed in his evidence in re-examination: "Q. What, if any, relevance to that conclusion does the circumstance to which you have referred of Rhiannon having multiple seizure types have on that answer? A. That multiple seizure types, in conjunction with infantile spasms has been shown, I think in the experience of a number of people and in some published reports, to be a poor prognostic feature for long term development and for good seizure control. For children with the multiple seizure types - although at times they do not appear to be very alarming seizures, there is no doubt they are often a forewarning of epilepsy that responds poorly to anti-convulsive medications and is associated with poor severe developmental delay, and I don't know of any good evidence that shows that the timing of the institution, of commencement of the epilepsy medication has any bearing on this. Q. It was put to you, and you agreed, that children suffering from cryptogenic infantile spasms have a better long-term outcome, as a generality, than those suffering from symptomatic infantile spasms. Once again, and this question follows from your previous answer, what about children who suffer from cryptogenic infantile spasms but who have multiple types of seizures? A. I don't know of any good evidence to be able to separate the two groups where there are multiple types of seizures with regard to prognosis. I'm afraid I don't know of studies that really answer that question. I think, from my own experience, that - certainly I have had more experience of children with multiple type or small fits who do poorly, regardless of when the medication has been introduced, soon after the onset of the seizures or after a delay. A delay in diagnosis is very common with little fits of this type, because it is often brought - unusual things a baby does at that age are often put down to wind, particularly up to the age of nine months. It becomes easier after nine months because they are doing so much more as a rule. But the delay in diagnosis for infants under the age of about nine months with little tiny fits, such as eye-rolling and little head nods, it is almost - it is more common than not that diagnosis is delayed. It is very common." (T.1111) 245 Dr Wise defined the cryptogenic category to be where a cause had not been found for seizures and development up until the time of onset of the seizures had been normal. Accordingly he did not consider that Rhiannon suffered from cryptogenic seizures. He said: "Overall greater than ninety percent of such children will prove to be very significantly handicapped in the long term, whatever the cause. "Cryptogenic" spasms are sometimes defined as spasms for which no cause has been determined despite detailed investigations - using these criteria perhaps forty percent of cases would be so classified, and the outcome of the group so defined is better, but not much different from the group overall. Other workers define cryptogenic cases as those for whom no cause can be found but who additionally have developed normally up to the time of onset of the attack. This group (perhaps fifteen percent - twenty percent) are much more likely to run a favourable course, but still fifty percent will finish up with significant handicap. Rhiannon did not fall into this category. … Dr Appleton has stated, and I agree, that there has been disagreement in the literature about whether delay in diagnosis and treatment affects outcome, and no papers answer this question definitively. My experience has been that many patients whose seizures have responded quickly and who have been diagnosed early have still gone on to have significant handicaps, and I have presumed that the underlying cause of their seizures, which has produced both handicap and the fits, has been unaffected by the successful treatment of but one of the symptoms of their malady. This is the view that many of my colleagues take, and it is a view shared by Dr Appleton". (Report 16 March 2002, p 3). 246 Dr Antony agreed with Dr Hopkins that the combination of mixed seizure types and pre-existing developmental delay was a particularly adverse indicator. In that group the prognosis for both seizures and continued significant developmental difficulties was virtually one hundred percent. (Report 27 February 2003) 247 Dr Manson defined cryptogenic seizures as those which started in a child who was developmentally normal until the time of the onset of spasms. He did not place Rhiannon in that category. He gave this evidence: "Q. You were asked a number of questions about the definition of cryptogenic and symptomatic epilepsy or infantile spasms, and you said that cryptogenic meant A, that there was no obvious cause and B, that the child had been normal until the onset of spasms. It was then put to you that there was a respected view that the ultimate outcome in children with cryptogenic spasms was better than in children with symptomatic spasms. So far as Rhiannon Richards is concerned, on the material available to you, in which category did she fall? A. I would have to say on the basis of the observations or rather the recording of observations from the parents by Dr Rahilly and Dr Bloomfield that the child had the symptomatic form of infantile spasms. Q. It was put to you and you touched on this already, that you were aware of a respected body of paediatricians who held the view that infantile spasms could cause encephalopathy and you answered that there was a body of opinion to that view but one with which you disagreed. Why do you disagree with that view? A. Because there have been numerous studies. First of all the evidence is conflicting. There is no disagreement that this is a rare disorder and there have been numerous studies that have come up with conflicting results, but careful analysis of the larger studies and more scientifically valuable studies have all come to the conclusion that there is no evidence of significance of any form of treatment and I must admit I personally believe there may be an exception for ACTH in a small proportion of cryptogenic cases but they say there is no evidence that any form of treatment has any effect on outcome and there is a number of multi-study reviews to that effect. Q. Again you referred in that answer to a small proportion of cryptogenic cases. Does Rhiannon Richards fall within that class or not? A. No." (T.1199) 248 Dr Burke approached the matter from a slightly different perspective: "Q. And do you say that it's unlikely the outcome would have been improved because it's your understanding that she was significantly delayed well before the treatment commenced? A. Primarily yes. Q. And it follows, I expect, that in your view the earlier treatment is commenced before the delay becomes apparent, the better the result? A. If the delay is purely due to the seizures. Q. Indeed? A. Yes. Q. If you assume that this particular patient suffered significant regression from a period around September through to the end of October, and if you further assume that in this particular patient, before the regression was suffered she had received the investigations by way of EEG and treatment, irrespective of which treatment had been commenced, it would follow would it not, that there would be an improved likelihood of a better outcome? A. I think the evidence is that, sure, the earlier the diagnosis is made, the earlier the treatment is instituted then the better the outcome, but I don't think it's necessarily a matter of a month. HIS HONOUR: Not necessarily a matter of? A. A month. A month's delay, two months' delay, is not necessarily deleterious. ANDERSON: Q: The month, however, could be quite significant could it not, if it happened to be in a month in which there was significant regression? A. No, I don't think so. I am just quoting the literature, that's the literature that one to two months is not an, is not an irremediable delay. HIS HONOUR: Q. Not an irremediable delay? A. That's correct." (T.1159) 249 The evidence of Professor Buchanan on this question is somewhat equivocal and rather surprising. "Q. Am I right in thinking that it is your opinion that the introduction of Vigabatrin earlier than it was introduced might have averted further brain damage in Rhiannon? A. Yes. Q. Was that your view on 16 December 1999? A. Yes. Q. That would then make the introduction of Vigabatrin a matter of considerable urgency wouldn't it? A. It is something that needed to happen over the next month or two on the basis this child had been unwell for some time and she was already on a lot of medication and it was my view, as expressed in correspondence from which I do not resile, before Vigabatrin was introduced in that setting, that the load of the other medications needed to be reduced to avoid side effects which I've already discussed. Q. Well the side effect you have discussed is increased drowsiness? A. Yes. Q. From 16 December do I understand that it is your view that every day that went past, every seizure that occurred involved a risk of further brain damage to Rhiannon? A. It is my view that the sooner, within reason, she could be relieved of her load of seizures the better. That is a view of most people, not with everybody, with epilepsy. Q. The question was did you think that because she wasn't on Vigabatrin she was probably incurring further brain damage? A. Yes. Q. Which could be avoided by the introduction of Vigabatrin? A. Yes. Q. The risk of introducing Vigabatrin immediately was increased drowsiness correct? A. In my view yes. Q. The risk of not introducing Vigabatrin immediately was increased brain damage correct? A. Yes that is a possibility. … Q. The only reason for not commencing Vigabatrin in your mind was the risk of increasing drowsiness? A. In the clinical setting in which I saw this child and her family which, with the greatest respect, is not something that you experience at the time, my concern was a very frail and fragile family setting, and my genuine concern was that if we introduced a drug in big dosage and there was a significant deterioration in this child, drowsiness, that the parents would perceive this as a significant deterioration in a clinical setting and I didn't think that would justify it in the family setting at that time." (T.486-488)

Professor Buchanan's delay in administering Vigabatrin until 10 March 2000 is surprising in the light of those answers. On this issue I find his actions more persuasive than his words. 250 A little later Professor Buchanan gave this evidence: "Q. Notwithstanding what you tell us was your belief that by leaving things alone and not introducing Vigabatrin you were risking further brain damage? A. Yes. Q. The 10th March was seven weeks and a bit after you had in fact assumed responsibility for Rhiannon's management? A. Yes. Q. In that period prior to 10 March, the only significant change that had taken place in Rhiannon's treatment was the cessation of the steroids? A. Yes. Q. From December through until late February of 2000 you did not regard it as urgent that Rhiannon be tried on Vigabatrin did you? A. I've already said that at this stage of the game the seizures had been going on for so long that a week or two, three or four weeks here or there, in my view was not going to make any significant difference." (T.496)

And: "Q. Had you thought that Rhiannon was at serious risk of further brain damage if Vigabatrin were not introduced, there was nothing preventing you introducing it, at least at the time of your January consultation, was there? A. We have, with respect, already discussed this but I am happy to go for it again. I did what I did to try and give the two existing medications a fair go and then introduce the Sabril, and she was already substantially damaged, very significantly damaged. A couple of weeks here or there in my opinion was going to make no difference at all or not significant difference. Q. Do you now think that a couple of weeks may have made a difference? A. I really can't answer your question. All I can tell you is that when Sabril was introduced and seizures improved, there was a substantial difference. Q. Do you now think that if that had been done two or three months earlier than you did, the end result might have been much better? A. I think if it had been done substantially earlier the end result would have been much better. Q. I'm asking about your management at the moment. Do you think that if you had done it earlier the end result might have been better? A. It may well have been, I don't know, Mr Brereton. Q. What I want to suggest is that while it may be the position, with the benefit of the retrospecto-scope, at the time in December January you did not perceive any urgency about the introduction of Sabril is that right? A. I thought it should be introduced but if you're asking me if I thought it was an urgent matter at that time, I have already said no." (T.497)

And: "Q. On 20 January you were quite happy to assume a risk of deterioration of seizure control for the purpose of the changes in medication that you were making weren't you? A. In any patient who - Q. Is the answer to my question 'yes'? A. Yes. Q. In the overall context of this child presenting to Dr Rahilly on 21 September 1999, being admitted to the Children's Hospital on 3 November 1999, coming to see you on 16 December 1999, coming under your management on 19 January 2000, and Vigabatrin commencing let us assume, on 10 March 2000, you are quite unable to say that, had an EEG been performed earlier than 3 November 1999, there would have been any difference in this child's ultimate outcome? A. I don't know if you are able to suggest that. Q. You are unable to say with any certainty that even an earlier admission to the Children's Hospital would have made a difference? A. I don't know if it would or not. Q. In the context of this child's illness and the time which it took to control it, had she come to the Children's Hospital a month earlier than she did, it is impossible to say whether or not there would have been a difference in the outcome isn't it? A. It is not a provable point." (T.617) I conclude from those answers that whereas Professor Buchanan thought a delay of two or three months was significant, he did not regard a delay of two-four weeks as such. 251 There is another way of looking at this question. If Rhiannon had been diagnosed with seizures in early October, she would undoubtedly have been treated in the same way and with the same medications as occurred when she was admitted to the Children's Hospital in early November. We now know that those medications were not successful in stopping the seizures. There is nothing to suggest that had that treatment been administered four weeks earlier than it was, it would have been any more successful. Even if Professor Buchanan had been brought into the matter four weeks earlier than he was, it is clear from his answers that he did not see there being any particular urgency in administering Vigabatrin. Accordingly I do not see how the delay of four weeks, for which it is alleged Dr Rahilly was responsible, could have had any significant effect on Rhiannon's ultimate outcome. 252 Because of the findings, which I have already made as to developmental delay in Rhiannon, and taking into account the relatively uncontroversial proposition that the spasms were of the mixed seizure type, I am not persuaded that a four-week delay in the diagnosis of Rhiannon had any effect on the outcome of her condition. 253 In relation to the claim against the Hospital, two causation issues arise. The first is whether Rhiannon's parents would have chosen the Vigabatrin option had all of the treatment options been explained to them. The second is whether the administration of Vigabatrin on 10 March 2000 in fact brought about a cessation of Rhiannon's seizures and would have done so if administered earlier. 254 It was submitted on behalf of Rhiannon that the hypothetical discussion concerning treatment options should have occurred some time in the first half of November. Had such a hypothetical conversation taken place, Rhiannon's parents would have opted for Vigabatrin as the appropriate treatment. 255 To support that proposition reliance was placed upon the evidence of Ms Ennis at T.174.40: "Q. But regardless of prescription or not, if he had said to you - look, Mrs Ennis, we have got this drug called Sabril, sometimes it works really well but it is also associated with problems in vision and I don't recommend that we use it at this stage. You would have accepted his advice just as you had accepted the advice of the other doctors? A. If she wasn't getting any better we might have said - well let's just try it." 256 Reliance was also placed upon the evidence of Mr Richards when he was recalled after the conclusion of the evidence (T.1226-1228). The evidence of Mr Richards was that had treatment options been explained to him, he would have chosen Vigabatrin. 257 The evidence of Mr Richards to which I have referred, is of little value. He understood how important that answer was to Rhiannon's case. Although his evidence on this question may well have been truthful, it suffers from the problem identified by McHugh J in Chappel v Hart (1998) 195 CLR 232 at 246 (note 64) and restated in Rosenberg v Percival (p 443, para 25). The reliability of such evidence needs to be assessed by reference to other evidence. 258 It should also be noted that the description of the treatment options when the question was asked of Mr Richards was extremely favourable to Vigabatrin, particularly the proposition that other treatments might take between six-ten weeks to produce results whereas Vigabatrin was likely to produce a positive result within one week. That was certainly not a proposition which Dr Hopkins supported (para [212]). 259 The defendants submitted that Rhiannon's parents had consistently followed the recommendations of Dr Grattan-Smith and there was no reason to think that had he engaged in the proposed hypothetical discussion, they would have acted otherwise than in accordance with his recommendations. Dr Grattan-Smith's evidence was that he would have expressed a strong preference for the use of Mogadon and steroids before Vigabatrin. It was not only open to Dr Grattan-Smith to express a preference for a certain regime of treatment, he was obliged to do so if he thought that regime was best for the plaintiff. 260 Ms Ennis was the parent with the primary responsibility for Rhiannon's care. It was noted that she was having trouble understanding the explanations given by the doctors to her. Such explanations often had to be given over the phone. It was submitted that she would almost certainly have accepted the recommendations of Dr Grattan-Smith. This evidence was given by Ms Ennis. "Q. From time to time over the six weeks that Rhiannon was at Westmead, one or other of the doctors told you they were using a particular drug or drugs? A. I think so yes. Q. You can remember reference being made at some stage to Epilim? A. Yes I remember that was one of them. Q. You can remember reference being made at some stage about Prednisone? A. I think so I don't recall but I think so. Q. At some stage they told you they were proposing a particular drug that would be taken by injection? A. Yes. Q. In that context does Synacthen ring a bell? A. Yes it does. Q. So far as the various drugs they were using were concerned, when they recommended proceeding with a particular drug did you accept their recommendations? A. Yes I think I did yes. Q. Did you ever question their recommendation? A. No I don't remember doing that. Q. Is it fair to say you thought they were the people in the best position to decide which medications ought to be tried? A. Yes I'm only a mum not a doctor. Q. When they made recommendations to you about use of a particular drug such as Synacthen or Prednisolone you invariably accepted their recommendations? A. Yes I did." (T.167-168) 261 The defendants relied upon the following evidence from Mr Richards: "Q. The doctors said to you something along the lines there is one drug but we don't want to give it to her at this stage. So you understood that to be another option, that drug, didn't you? A. I didn't think about it at the time. Q. Well thinking about it now, when he says 'We are running out of options, we have tried a few drugs already. There is one drug but we don't want to give it to her at this stage', that is, it is clear enough, thinking about it now, what he was referring to was another option for treating the seizures? A. Yes. Q. And referring to it he was also saying 'But it has a problem, it can cause peripheral vision trouble'? A. Yes. Q. You didn't say, well, I don't care about the peripheral vision. If it's going to treat the seizure, I want you to use that drug now, did you? A. No. Q. Because you thought that the doctor was the best person to make that call didn't you? A. Yes." (T.311) 262 The defendants also submitted that the evidence of Ms Ennis, upon which reliance was placed (para [255]), was taken out of context. The extract was used as if it referred to a recommendation from Dr Grattan-Smith while Rhiannon was under his care. The context showed that the answer referred to a much later period when Rhiannon was under Professor Buchanan's care and concerned a hypothetical conversation with Professor Buchanan at that point in time. "Q. Did Professor Buchanan, as you understood it, recommend to you that despite these possible risks with vision you should try Vigabatrin? A. Yes. Q. You accepted his advice? A. Yes. Q. If the Professor had said to you - 'Look there is this drug Vigabatrin it might work but it does have some problems, and at this stage I don't recommend we use it'. You would have accepted that advice from him would you? A. I possibly would have because if he gave us the drugs we would have had to accept it. Q. But regardless of prescription or not, if he had said to you - 'Look Ms Ennis, we have got this drug called Sabril, sometimes it works really well but it is also associated with problems in vision and I don't recommend that we use it at this stage'. You would have accepted his advice, just as you had accepted the advice of the other doctors? A. If she wasn't getting any better we might have said - well let's just try it." (T.174)

I agree with the defendants that in its proper context the evidence of Ms Ennis has a different effect to that sought to be drawn from it in the submissions on behalf of Rhiannon. It relates to a later period when the parents may well have been looking for a new treatment. 263 Dr Hopkins was of the opinion that patients usually accepted the doctor's recommendations (para [226]) and: "Q. And the final question then I think is this. You were asked whether any of the parents of patients you have treated for infantile spasms had elected to embark on treatment with Vigabatrin and you answered 'yes'. Have any declined to embark on treatment with Vigabatrin? A. No. I cannot remember a patient that specifically has declined if I have made the recommendation that they should have it. …" (T.1113) 264 I am not satisfied that had a hypothetical conversation taken place in November 1999 between Dr Grattan-Smith and Rhiannon's parents, or either one of them, in which he had expressed a strong preference for medications other than Vigabatrin that his recommendation would have been rejected. 265 The defendants submitted that there was no evidence that Rhiannon responded to Vigabatrin and that her subsequent improvement was coincidental. Alternatively the defendants submitted that it was not established that had Vigabatrin been administered earlier, the same sort of improvement would have incurred. 266 The evidence of Mr Richards was that Rhiannon's condition improved after seven days of being on Vigabatrin. Rhiannon was more focused and more active and had fewer seizures. In relation to this issue I prefer the sequential reports of Professor Buchanan, which were prepared before litigation was contemplated, and which provide a more objective assessment of how Rhiannon was progressing (paras [98] - [102]). 267 The letters to Dr Gibson of 29 March and 25 May 2000 seem to indicate that Rhiannon did respond to Vigabatrin, although not as rapidly as was suggested by Mr Richards. The most significant improvement seems to have occurred after 29 March. After fourteen days it was noticed that seizure control was better. She suffered her last seizure on 30 April. An EEG of 18 May showed no epileptic activity, although there were other abnormalities. 268 The correspondence from Professor Buchanan indicates some improvement in Rhiannon even before the administration of Vigabatrin, although her improvement was more rapid after that medication was commenced. I am satisfied that the administration of Vigabatrin on 10 March and thereafter either led to the cessation of Rhiannon's seizures, or accelerated the improvement which Professor Buchanan had already noted. I reject the submission by the defendants that Rhiannon's improvement in March, April and May 2000 was purely coincidental with the introduction of Vigabatrin. 269 That does not end the matter. There was persuasive evidence from the defendants' experts that the natural history of seizures in infants is that they eventually settle down, usually within two years. This was the evidence of Dr Antony (report 8 January 2002, p 5), of Dr Manson (report 6 February 2003, p 14) and Dr Wise (report 16 March 2002, p 4). In other words just because Vigabatrin may have brought about an improvement in March 2000 does not necessarily mean that the same improvement would have been achieved had that medication been administered earlier. Professor Buchanan assumed that this would be so but was not able to be more definite. No other doctor in the case was prepared to go as far as that. My findings and the evidence (paras [240] - [252]) on the question of whether a delay of four weeks in diagnosis would have had a detrimental effect on Rhiannon's outcome is also relevant to this question. I am not satisfied that had Vigabatrin been administered before 10 March 2000 it would have had the same beneficial effect as it did after that date. 270 Because of the factual findings which I have made in relation to breach of duty and causation, it is not necessary to determine whether as a matter of law causation has been established.

Conclusion 271 In relation to the claim against Dr Rahilly, I find that breach of duty has not been established. In the alternative, if breach of duty was established, I find that a delay of four weeks did not cause any adverse outcome for Rhiannon and consequently was not causative of any damage. Accordingly there will be judgment for Dr Rahilly. 272 In relation to the claim against the Hospital, I find that breach of duty has not been established. In the alternative, if breach of duty was established, such breach did not cause damage to Rhiannon because (i) even if Vigabatrin had been discussed, Rhiannon's parents would have not chosen it contrary to the advice of Dr Grattan-Smith and (ii) the earlier administration of Vigabatrin would not have affected the developmental outcome of Rhiannon. Accordingly, there will be judgment in favour of the Hospital. 273 The question of costs was not argued. Liberty is granted to the parties to approach the Court on two days' notice if it is intended to make submissions in relation to costs. If the parties do not make submissions as to costs, the order which I propose is that costs should follow the event and that the plaintiffs should pay the defendants' costs. 274 I make the following orders: (1) Judgment is entered in favour of the first defendant. (2) Judgment is entered in favour of the second defendant. (3) Costs are reserved.

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